THE   WISCONSIN    IDEA 


THE  MACMILLAN  COMPANY 

NEW  YORK   .    BOSTON  •    CHICAGO 
DALLAS   •    SAN    FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON  •    BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 
TORONTO 


THE  WISCONSIN  IDEA 


BY 

CHARLES  MCCARTHY 

CHIEF.   WISCONSIN   LEGISLATIVE  REFERENCE  DEPARTMENT 


THE   MACMILLAN    COMPANY 
1912 

All  rights  reserved 


COPYRIGHT,  1912, 
BY  THE  MACMILLAN  COMPANY. 


Set  up  and  elcctrotyped.    Published  March,  1912. 


J.  S.  Cashing  Co.  — Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


Co 

THE  HARD-HANDED  MEN  WHO  BROKE  THE  PRAIRIE,  HEWED  THE 
FORESTS,  MADE  THE  ROADS  AND  BRIDGES,  AND  BUILT  LITTLE  HOMES  IN 
THE  WILDERNESS. 

To  THE  NORSE  LUMBERJACK  AND  THE  "FORTY-EIGHT"  GERMAN 
AND  THE  MEN  OF  THE  "  IRON  BRIGADE,"  AND  ALL  TOILERS  WHO,  BY 
THEIR  SWEAT,  MADE  POSSIBLE  OUR  SCHOOLS,  A  GREAT  UNIVERSITY,  AND 
ALL  THE  GOOD  THAT  IS  WITH  US. 

TO  THE  LEGISLATORS,  ALWAYS  CRITICISED  AND  NEVER  PRAISED. 

"THEY  THAT  DIG  FOUNDATIONS  DEEP, 

FIT  FOR  REALMS  TO  RISE  UPON, 
LITTLE  HONOR  DO  THEY  REAP, 

OF  THEIR  GENERATION." 

KIPLING. 


241451 


INTRODUCTION 

THANKS  to  the  movement  for  genuinely  democratic 
popular  government  which  Senator  La  Follette  led  to 
overwhelming  victory  in  Wisconsin,  that  state  has  be- 
come literally  a  laboratory  for  wise  experimental  legis- 
lation aiming  to  secure  the  social  and  "political  better- 
ment of  the  people  as  a  whole.  Nothing  is  easier  than 
to  demand,  on  the  stump,  or  in  essays  and  editorials, 
the  abolition  of  injustice  and  the  securing  to  each  man 
of  his  rights.  But  actually  to  accomplish  practical  and 
effective  work  along  the  line  of  such  utterances  is  so  hard 
that  the  average  public  man,  and  average  public  writer, 
have  not  even  attempted  it ;  and  unfortunately  too  many 
of  the  men  in  public  life  who  have  seemed  to  attempt  it 
have  contented  themselves  with  enacting  legislation 
which,  just  because  it  made  believe  to  do  so  much,  in 
reality  accomplished  very  little . 

But  in  Wisconsin  there  has  been  a  successful  effort  to 
redeem  the  promises  by  performances,  and  to  reduce 
theories  into  practice.  In  consequence  legislative  leaders 
and  reformers  pushing  legislation  in  other  states  write 
by  the  hundred  to  the  men  in  power  in  Wisconsin  ask- 
ing for  information  on  what  has  been  done.  Mr. 
McCarthy,  the  chief  of  the  Legislative  Reference  Library 
of  the  Free  Library  Commission,  has  written  this  book 
primarily  to  answer  such  inquiries.  His  purpose  is  to 

vii 


Vlii  INTRODUCTION 

make  the  book  of  real  service  to  good  government,  and 
this  purpose,  in  my  judgment,  he  has  admirably  fulfilled. 
It  isji  well  reason^  ?nd  thoughtful  exposition  of  how 
sane  radicalism  can  be  successfully  applied  in  practice. 
His  writings  have  nothing  wEaFever  in  common  with  the 
mere  hysterics  out  of  which  some  well  meaning,  but 
not  very  efficient,  radicals  seem  to  get  such  curious 
mental  satisfaction.  Mr.  McCarthy  not  only  shows  how 
Wisconsin  has  proceeded  in  specific  instances  to  accom- 
plish specific  results,  but  he  has  so  interwoven  his  studies 
of  those  separate  results  as  to  make  the  volume  into  a 
connected  whole.  Through  his  account  of  actual  accom- 
plishment in  the  field  of  political  and  industrial  reform 
in  Wisconsin,  there  runs  a  strain  of  philosophy  that  it 
would  be  well  for  every  practical  reformer  to  master. 
As  Professor  Simon  N.  Patten  says :  "  Without  means  of 
I  attainment  and  measures  of  result  an  ideal  becomes 
||,  meaningless.  The  jrej^jdealist  is  a  pragmatist  and  an 
economist.  He  demands  measurable  results  and  reaches 
\  them  by  means  ina9e~lf^aiiable  by  economic  efficiency. 
Only  in  this  way  is  social  progress  possible."  Mr. 
McCarjjjyjsjwrpose  is  to  impress  not  only  every  real 
reformer,  but  every  capable  politician,  with  the  factrthat 
the  people  are  more  concerned  about  "good  works" 
than  about  "faith." 

The  Wisconsin  reformers  have  accomplished  the  ex- 
traordinary results  for  which  the  whole  nation  owes 
them  so  much,  primarily  because  they  have  not  confined 
themselves  to  dreaming  dreams  and  then  to  talking 
about  them.  They  have  had  power  to  see  the  vision, 
of  course ;  if  they  did  not  have  in  them  the  possibility 


INTRODUCTION  IX 

of  seeing  visions,  they  could  accomplish  nothing;  but 
they  have  tried  to  make  their  ideals  realizable,  and  then 
they  have  tried,  with  an  extraordinary  measure  of 
success,  actually  to  realize  them.  As  soon  as  they 
decided  that  a  certain  object  was  desirable  they  at  once 
set  to  work  practically  to  study  how  to  develop  the  con- 
structive machinery  through  which  it  could  be  achieved. 
This  is  not  an  easy  attitude  to  maintain.  Yet  every 
true  reformer  must  maintain  it.  The  true  reformer 
must  ever  work  in  the  spirit,  and  with  the  purpose,  of 
that  greatest  of  all  democratic  reformers,  Abraham  Lin- 
coln. Therefore  he  must  make  up  his  mind  that  like 
Abraham  Lincoln  he  will  be  assailed  on  the  one  side  by 
the  reactionary,  and  on  the  other  by  that  type  of  bubble 
reformer  who  is  only  anxious  to  go  to  extremes,  and  who 
always  gets  angry  when  he  is  asked  what  practical  re- 
sults he  can  show.  Mr.  McCarthy  emphasizes  the 
lesson  that  cheap  clap-trap  does  not  pay,  and  that  the 
true  reformer  must  study  hard  and  work  patiently. 

Moreover,  Mr.  McCarthy  deserves  especial  praise  for 
realizing  that  there  is  no  one  patent  remedy  for  getting 
universal  reform.  He  shows  that  a  real  reform  move- 
ment must  have  many  lines  of  development.  Reformers, 
if  they  are  to  do  well,  must  look  both  backward  and 
forward ;  must  be  bold  and  yet  must  exercise  prudence 
and  caution  in  all  they  do.  They  must  never  fear  to 
advance,  and  yet  they  must  carefully  plan  how  to 
advance,  before  they  make  the  effort.  They  must  care- 
fully plan  how  and  what  they  are  to  construct  before 
they  tear  down  what  exists.  The  people  must  be  given  i  . 
full  power  to  make  their  action  effective,  and  at  the  JA  vl^ 


INTRODUCTION 


time  the  educational  institutions  of  the  common- 
wealth must  be  built  up  in  such  shape  as  to  give  the 
people  the  opportunity  to  learn  how  to  use  their  power 
.wisely.  Nor  must  political  reform  stand  by  itself.  It 
must  accompany  economic  reform ;  and  economic  reform 
must  have  a  twofold  object;  first  to  increase  general 
prosperity,  because  unless  there  is  such  general  pros- 
perity no  one  will  be  well  off ;  and,  second,  to  secure  a 
fair  distribution  of  this  prosperity,  so  that  the  man  of 
the  people  shall  share  in  it. 

In  short,  this  is  a  book  which  in  my  judgment  every 
reformer,  just  at  this  time,  should  have  in  his  hands. 
All  through  the  Union  we  need  to  learn  the  Wisconsin 
lesson  of  scientific  popular  self-help,  and  of  patient  care 
in  radical  legislation.  The  American  people  have  made 
up  their  minds  that  there  is  to  be  a  change  for  the  better 
in  their  political,  their  social,  and  their  economic  condi- 
tions; and  the  prime  need  of  the  present  day  is  prac- 
tically to  develop  the  new  machinery  necessary  for  this 
new  task.  It  is  no  easy  matter  actually  to  insure,  in- 
stead of  merely  talking  about,  a  measurable  equality  of 
opportunity  for  all  men.  It  is  no  easy  matter  to  make 
this  Republic  genuinely  an  industrial  as  well  as  a  politi- 
cal democracy.  It  is  no  easy  matter  to  secure  justice 
for  those  who  in  the  past  have  not  received  it,  and  at 
the  same  time  to  see  that  no  injustice  is  meted  out  to 
trocess^/It  is  no  easy  matter  to  keep  the 
Balance  level  and  make  it  evident  that  we  have  set  our 
faces  like  flint  against  seeing  this  government  turned 
into  either  government  by  a  plutocracy,  or  government 
by  a  mob.  It  is  no  easy  matter  to  give  the  public  their 


INTRODUCTION  XI 

proper  control  over  corporations  and  big  business,  and 
yet  to  prevent  abuse  of  that  control.  Wisconsin  has 
achieved  a  really  remarkable  success  along  each 
every  one  of  those  lines  of  difficult  endeavor7~"lt  is  a 
great  feat,  which  deserves  in  all  its  details  the  careful 
study  of  every  true  reformer;  and  Mr.  McCarthy  in 
this  volume  makes  such  study  possible. 

THEODORE  ROOSEVELT. 


PREFACE 

IN  my  capacity  as  legislative  librarian  for  over  ten 
years  in  the  state  of  Wisconsin,  I  have  been  constantly 
in  touch  with  the  legislation  of  this  state,  which  now 
seems  to  be  attracting  some  little  attention  throughout 
the  country.  The  legislative  reference  department  has 
been  besieged  by  newspaper  writers  who  come  here  to 
use  the  files  and  records.  The  recent  magazines  have 
contained  considerable  literature  relating  to  the  con- 
structive nature  of  this  legislation.  Every  day  this 
department  is  called  upon  to  answer  many  questions 
concerning  particular  laws  or  underlying  principles.  Our 
time  has  been  taken  up  to  such  an  extent  that  it  has 
been  deemed  wise,  after  a  great  deal  of  deliberation  and 
perplexity  as  to  what  should  be  done  with  the  increas- 
ing volume  of  correspondence,  to  set  down  a  few  notes 
about  these  laws,  and  the  philosophy  upon  which  they 
are  built  as  I  see  it.  In  doing  so  I  am  aware  of  my 
limitations.  I  have  done  the  work  hurriedly,  without 
due  care  as  to  literary  standards.  Also,  I  have  been 
handicapped  to  some  degree  because  I  have  been  work- 
ing in  this  department  for  the  legislators  and  have  taken 
no  part  in  active  politics. 

In  the  actual  toil  and  drudgery  of  the  legislative 
session  —  in  a  clerical  capacity  —  I  have  tried  gladly  to 
carry  out  the  will  of  the  men  of  genius  and  power  who 


PREFACE 

composed  the  Wisconsin  legislature.  Working  under  the 
direction  of  the  legislature,  a  large  part  of  this  legisla- 
tion, indeed  the  principal  part  of  it,  was  constructed  in 
some  connection  with  the  department  of  which  I  have 
been  chief.  Because  of  my  duties  as  librarian  of  the 
legislative  reference  department  and  as  a  member  of  the 
faculty  of  the  University  of  Wisconsin,  I  can  say  truly 
that  I  have  had  opportunities  to  see  events  in  this  state 
perhaps  from  a  different  standpoint  than  any  other  man. 
If  I  show  a  certain  spirit  now  and  then  which  may  seem 
to  cloud  my  judgment  as  to  certain  matters  herein  con- 
tained, I  crave  the  reader's  pardon  on  the  score  that  I, 
a  wandering  student,  seeking  knowledge,  came  knock- 
ing at  the  gates  of  the  great  University  of  Wisconsin,  and 
it  took  me  in,  filled  me  with  inspiration,  and  when  I  left 
its  doors  the  kindly  people  of  the  state  stretched  out 
welcoming  hands  and  gave  me  a  man's  work  to  do. 

Without  the  collaboration  of  my  assistant,  Miss  Ono 
Mary  Imhoff,  these  rough  notes  could  not  have  been  put 
together.  She  has  also  prepared  the  short  bibliography 
which  may  be  found  in  the  Appendix  and  which  will 
show  the  inquirer  how  and  where  to  obtain  particular 
laws  or  documents. 


TABLE   OF   CONTENTS 

PAGE 

INTRODUCTION .  vii 

PREFACE xiii 

CHAPTER  I 
THE  REASON  FOR  IT i 

CHAPTER  II 
THE  SOIL 19 

CHAPTER  III 

THE  REGULATION  OF  BUSINESS  AFFECTED  BY  A  PUBLIC 

INTEREST 34 

CHAPTER  IV 

ELECTORAL  AND  GOVERNMENTAL  CHANGES        ...      88 

CHAPTER  V 
EDUCATIONAL  LEGISLATION 124 

CHAPTER  VI 

LABOR,  HEALTH,  AND  PUBLIC  WELFARE    .        .        .        .156 

xv 


Xvi  TABLE    OF   CONTENTS 

CHAPTER  VH 

PAGE 

ADMINISTRATION         .        .        .        .        .        .        .        .172 

CHAPTER  VIII 
THE  LEGISLATURE 194 

CHAPTER  IX 
THE  LAW  AND  ECONOMIC  PROGRESS 233 

CHAPTER  X 
CONCLUSION 273 

APPENDIX 

BIBLIOGRAPHY 307 

INITIATIVE  AND  REFERENDUM  RESOLUTION        .        .        .    309 
MEN     SERVING    BOTH     UNIVERSITY     AND     STATE    FOR 

I9IO-II 313 

INDEX 319 


ERRATUM 

Page  36  :  Quotation  credited  to  the  author  of  The  American 
Commonwealth,  beginning  "  Such  was  the  beginning  of  the 
dynasties  of  absolution"  etc.,  should  have  been  credited  to 
A.  B.  Stickney. 


THE  WISCONSIN    IDEA 

CHAPTER  I 
THE  REASON  FOR  IT 

THE  reason  for  the  Wisconsin  legislative  program  is 
not  hard  to  find.  There  is  really  but  one  cause  and  it 
presents  but  one  problem,  which  is  basic  to  all  others, 
and  no  advancement  of  human  welfare  or  progress  of 
civilization  can  take  place  until  a  solution  is  found. 

The  problem  is  one  with  which  the  whole  American 
people  is  grappling.  It  presents  no  particular  mystery 
nor  is  it  difficult  to  understand. 

Take  up  any  newspaper.     What  are  the  headlines? 
-Monopoly  -  •  Trusts  -  -  Trusts  and  the  tariff  - 
High  cost  of  living  —  Predatory  wealth. 

Pick  up  a  President's  message.  Can  there  be  any 
doubt  about  it  ?  Always  the  same  —  something  strong 
and  oppressive,  almost  unreachable,  in  some  way  entan- 
gled with  courts,  lawyers  and  litigation  —  always  having 
the  power  to  attain  its  object  —  always  possessing  FORCE. 

Force?  How  can  these  things  have  Force?  Have 
they  armies,  guns  or  the  attributes  of  those  who  usually 
possess  force?  If  not,  how  can  they  oppress? 

Suppose  when  you  went  to  buy  food  the  man  who  had 
it  asked  you  ten  dollars  when  it  was  worth  only  one,  and 


\  f\  1 

V    »  I 


2  ?  XI  «••     :  tBE  .'WISCONSIN  IDEA 

putting  a  gun  at  your  head  made  you  give  him  the  other 
nine  dollars.  Would  the  contracting  parties  be  on  equal 
footing  ?  One  of  the  parties  added  Force  to  the  contract 
to  make  it  favorable  to  him.  Suppose  he  did  not  make 
use  of  the  gun  and  yet  you  could  not  buy  the  food  from 
any  other  man,  because  he  had  a  monopoly  and  you  would 
be  obliged  to  give  him  the  other  nine  dollars.  Would 
he  not  be  doing  the  same  thing,  adding  force  to  contract  ? 
The  only  difference  is  that  one  time  he  used  a  gun  and  the 
other  time  monopoly.  Wealth  would  concentrate  quickly 
in  your  community,  would  it  not  —  and  Force  also  ? 

Suppose  that  this  condition  existed  almost  universally 
and  that  certain  people  possessed  natural  monopoly  in  oil, 
iron,  coal  and  the  necessities  of  life,  and  others  possessed 
artificial  monopoly  in  franchises,  transportation  facilities, 
patents,  etc.,  —  is  there  any  doubt  that  the  problem 

*s  ^e  same>  anc^  ^ne  cause  °f  it  —  unequal  conditions  of 
contract? 

The  remedy  ?  It  is  easy  to  say  "  equalize  the  condi- 
tions between  these  two,"  but  how  can  it  be  done? 
Everything  in  life  is  unequal  but  it  is  inequality  that 
makes  men  strive.  Can  you  put  a  penalty  on  sturdiness, 
intelligence  or  efficiency  ?  How  big  must  be  the  force 
I  and  how  great  the  inequality?  A  herd  philosophy  of 
absolute  equality  is  foreign  to  our  genius. 

A  remedy  based  upon  a  philosophy  of  "  the  weak  to  live 
and  the  strong  to  die"  obviously  cannot  serve  our  pur- 


\\\ 


THE   REASON  FOR   IT  3 

pose.  History  and  the  common  experience  of  life  teach 
us  that  adversity  has  its  place  in  the  success  of  a  nation. 
A  man,  a  plant  or  a  nation  cannot  be  kept  in  a  molly- 
coddle stage  and  develop  true  virility.  Pain  and  strong 
winds  are  the  friends  of  nations,  as  of  men. 

The  moment  we  begin  to  equalize  the  conditions  of  j\  \\  t 
men  we  are  on  dangerous  ground.    The  fierce  fight  of//  ' 
competition   must  remain;   the  adventurous   spirit 
fearless  attack  against  great  odds  is  the  very  soul  of  th 
spirit  of  our  people. 

Civilization  has  not  arisen  under  the  hot  sun  where 
nature  seems  too  kind.  It  has  its  chief  seat  where  the 
elements  and  the  stubborn  soil  force  men  to  use  their 
might ;  and  sheer  necessity  makes  great  men  and  great 
countries ;  but  again  too  much  ice  and  snow  stunts  life 
and  ambition ;  the  Esquimaux  builds  nothing  but  a  snow 
hut.  A  temperate  zone  in  business,  in  which  men  may 
live,  work  and  develop  the  best  that  is  in  them  for  them- 
selves and  for  all,  must  be  created  and  carefully  protected. 
There  is  a  limit  to  free  play.  As  John  Stuart  Mill  said :  — 

"Energy  and  self-dependence  are,  however,  liable  to  be  im- 
paired by  the  absence  of  help,  as  well  as  by  its  excess.  It  is  even 
more  fatal  to  exertion  to  have  no  hope  of  succeeding  by  it  than  to 
be  assured  of  succeeding  without  it." 

But  can  a  legislature,  even  if  it  were  perfect,  justly 
say  whether  gas  should  be  ninety  or  ninety-five  cents  ? 


4  THE   WISCONSIN   IDEA 

During  a  crowded  legislative  session  how  can  it  determine 
and  put  into  law  a  schedule  of  prices  for  oil  and  coal  or 
of  railroad  rates  ?  Even  if  this  were  possible,  are  we  not 
basing  all  on  the  presumption  that  the  legislature  is 
willing  and  ready  to  do  our  will  ?  It  is  not  so  simple  as 
this ;  as  an  editorial  in  the  Chicago  Tribune,  commenting 
on  recent  events  in  the  state  of  Illinois,  expresses  it :  — 

"Before  the  corporation  robber  can  be  suppressed  it  will  be 
necessary  to  suppress  the  corporation  incendiary  who  supports  him 
and  the  political  jackpotter  who  plays  into  the  hands  of  both." 

It  is  not  so  easy  to  get  regulation  from  the  legislature 
as  it  may  seem.  The  people  who  possess  Force  use  it  in 
this  connection  as  freely  as  they  use  it  elsewhere,  and 
the  legislative  machinery  is  not  yet  so  complete  that  it 
always  follows  the  wishes  of  the  people. 

The  judges  ?  Can  we  turn  to  them  ?  Well,  the  Man 
in  the  Street  looks  dubious  when  you  ask  him.  This 
matter  of  contract  in  relation  to  monopoly  has  some- 
how been  strangely  muddled  in  the  courts ;  we  are  still 
looking  in  vain  for  any  real  relief  from  that  quarter. 
The  truth  is,  that  the  judges  are  like  the  legislators ;  even 
if  they  are  clear-brained  and  brave  enough,  how  can  they 
fix  the  price  of  gas  at  ninety  instead  of  ninety-five  cents  ? 
What  means  have  they  for  studying  carefully  every  cog  in 
the  great  machinery  of  commerce  ?  They  were  not  con- 
stituted for  this  duty,  and  as  umpires  can  scarcely  assume 


THE   REASON  FOR  IT  5 

control  of  a  legislative  and  administrative  problem. 
Americans  do  not  want  their  judges  to  be  legislators. 

Yet  a  frenzy  of  judicial  remedy  seems  to  have  seized 
us.  We  have  all  selected  our  favorite  "trust  busters," 
and  the  newspapers  are  full  of  stories  of  the  deeds  of 
these  mighty  men.  The  street  corner  orator  yells 
"Bust  them,"  "Dissolve  them,"  "Imprison  them." 

Professor  R.  T.  Ely,  in  his  book  on  trusts,  quotes 
newspaper  headings  of  twenty  years  ago  as  follows :  — 

"Black  Eye  for  the  Trusts  —  Important  Decision  handed  down 
in  Chicago." 

"  The  Standard  Oil  Trust  has  resolved  upon  dissolution." 

"  Pools  are  hit  Hard  —  United  States  Supreme  Court  Upholds 
Sherman  Act  —  Decision  is  a  Surprise  —  Virtually  Declares  all 
Traffic  Agreements  Illegal  —  Competition  will  be  Open  —  Man- 
agers greatly  Concerned." 

"  Trusts  in  a  Panic  —  Tobacco  Combine  Makes  the  First 
Important  Surrender,  etc." 

"  Trusts  Busted  —  Far-reaching  Effects  of  the  Supreme  Court 
Decision." 

Familiar  friends  these,  are  they  not  ? 
As  Professor  Ely  says :  — 

"  Comment  on  these  utterances  of  the  press  is  scarcely  neces- 
sary to-day.  If  there  is  any  serious  student  of  our  economic  life 
who  believes  that  anything  substantial  has  been  gained  by  all  the 
laws  passed  against  trusts,  by  all  the  newspaper  editorials  which 
have  thus  far  been  penned,  by  all  the  sermons  which  have  been 
preached  against  them,  by  all  the  speeches  of  politicians  denounc- 


6  THE   WISCONSIN  IDEA 

ing  them,  this  authority  has  yet  to  be  heard  from.  Forms  and 
names  have  been  changed  in  some  instances,  but  the  dreaded  work 
of  vast  aggregation  of  capital  has  gone  on  practically  as  heretofore. 
The  writer  does  not  hesitate  to  affirm  it  as  his  opinion  that  efforts 
along  lines  which  have  been  followed  in  the  past  will  be  equally 
fruitless  in  the  future." 

But  the  man  who  has  FORCE  is  the  employer  of  men 
and  women.  Little  homes  and  villages  and  the  happi- 
ness of  thousands  depend  upon  him.  After  all,  he  is  in 
our  midst ;  he  is  a  part  of  us  and  we  cannot  "  tear  him  to 
pieces,"  "dissolve  him,"  or  "bust  him."  Would  stopping 
the  railroad  or  closing  the  electric  light  plant  be  of  any  bene- 
fit to  us  ?  The  remedy  must  be  complex  and  varied.  The 
evils  considered  here  are  as  old  as  the  world  and  inherent 
wherever  human  frailty  meets  human  strength.  They  are 
involved  in  every  human  attribute,  and  no  rule  of  thumb  or 
cut  and  dried  theory  can  affect  them  wholly  or  completely. 

However,  there  is  a  difference  between  a  mountain 
and  a  molehill,  and  the  great  and  glaring  wrongs  can  be 
righted.  Relieve  the  individual  from  even  a  little  unjust 
force  and  he  will  do  the  rest.  As  long  as  he  knows  how 
to  fight,  is  not  complacent,  nor  overwhelmingly  handi- 
capped, the  result  will  never  be  in  doubt. 

No  plan  can  be  made  which  will  be  successful,  even 
temporarily,  unless  we  probe  for  sound  basic  ideas.  If 
this  problem  of  concentrated  wealth  and  power  is  world 
wide  and  world  old,  let  us  try  to  view  it  in  its  right  rela- 


THE   REASON   FOR   IT  7 

tions,  in  order  that  our  plan  for  the  future  may  not 
topple  over  because  its  base  is  not  sufficiently  broad. 

Every   schoolboy    knows    that    nations    apparently  ^V  ? 
have  a  childhood,  a  strong  youth  and  a  gradual  coming  I     /    . 
of  age  and  decay.     In  the  youthful  period,  caste  and 
wealth  are  not  prominent.     The  righting  man  of  a  Saxon  y\  \ 
horde  or  a  Daniel  Boone  is  respected  and  self-surficient.yy  J 
A  man  is  rated  as  a  man.     After  a  tribe  has  been  settled 
for  a  hundred  years,  we  find  that  a  few  seem  to  be  in 
the  lead,  having  land,  wealth  and  power,  while  others 
seem  to  be  gradually  drifting  downward  in  the  scale. 
Finally,  a  few  hundred  years  later,  we  find  conditions 
such  as  exist  in  Russia,  with  concentrated  wealth,  caste 
and  power  on  one   hand  and  extreme   poverty  on  the 
other.    As  John  Boyle  O'Reilly  once  said :  — 

"  A  small  class  in  every  country  has  taken  possession  of  property 
and  government,  and  makes  laws  for  its  own  safety  and  the  secur- 
ity of  its  plunder,  educating  the  masses,  generation  after  genera- 
tion into  the  belief  that  this  condition  is  the  natural  order  and  the 
law  of  God.  By  long  training  and  submission  the  people  every- 
where have  come  to  regard  the  assumption  of  the  rulers  and  owners 
as  the  law  of  right  and  common  sense,  and  their  own  blind  in- 
stincts, which  tell  them  that  all  men  ought  to  have  a  plenteous 
living  on  this  rich  earth,  as  the  promptings  of  evil  and  disorder." 

If  this  has  been  the  course  of  history,  are  there  not  lessons 
to  be  learned  ?  Is  there  not  some  way  of  keeping  history 
from  repeating  itself  ?  Is  there  not  some  means  by  which 


8 


THE   WISCONSIN   IDEA 


we  can  maintain  the  youth  of  the  nation,  keep  poverty  at 
a  minimum,  and  wealth,  caste  and  privilege  from  com- 
manding, conquering  and  finally  destroying  the  nation  ? 

Let  us  look  at  this  crude  diagram.  Perhaps  it  will 
show  how  far-reaching  the  remedy  must  be. 

In  the  diagram  to  the  left,  marked  Stage  i,  you  will 
notice  the  word  Wealth  at  the  top  and  the  word  Poverty 


STAGE  1 


AMERICAN 

PEOPLE 

1850 


STAGE  3 


at  the  bottom ;  between  these  two  extremes  is  a  square 
representing  the  American  people  in  1850.  It  represents 
a  time  in  America  when  the  great  monopolies  had  not 
been  formed;  when  Force  in  contract  did  not  exist  to 
the  extent  that  it  does  to-day ;  there  was  plenty,  and  it 
was  not  necessary  to  use  force.  Was  there  not  free 
land,  oil,  minerals,  etc.  ?  Wherein  lay  the  advantage  of 
monopoly  ? 

To  the  right  of  this  is  Stage  2,  which  is  intended  to 
represent  conditions  in  1912.  A  small  rectangle  will  be 
seen  directly  under  the  heading  Wealth.  This  shows 
the  change  that  has  taken  place.  One  per  cent  of  the 


THE   REASON   FOR   IT 

people  now  possess  over  fifty  per  cent  of  the  wealth. 
Yet  the  strong,  independent  American  spirit  is  still  evi- 
dent in  the  class  represented  halfway  between  Wealth 
and  Poverty;  notice  the  other  small  rectangle  at  th 
bottom  —  the  very  poor.  Does  any  one  maintain  that 
this  picture  is  untrue?  Some  might  consider  the  rec- 
tangle representing  the  very  poor  too  small,  but  for  our 
purpose  —  to  illustrate  the  basic  conditions  of  society 
in  relation  to  the  Wisconsin  idea  —  it  will  serve  very 
well. 

On  the  extreme  right  is  Stage  3.  It  needs  no  com- 
ment. The  sad  history  of  many  a  country  can  be 
pictured  by  that  little  diagram  because  concentrated 
wealth  means  power,  caste,  privilege,  corruption  and 
decay  of  every  ideal,  whether  of  manhood,  morals  or 
patriotism.  Are  not  the  crumbled  remains  of  what  were 
once  prosperous  cities  scattered  in  the  waste  places  of 
the  earth  sufficient  proof  of  all  this?  We  need  not 
exaggerate  this  picture,  and  we  cannot. 

With  these  diagrams  before  us  the  question  with 
which  we  are  concerned  is,  are  we  following  the  same 
path  ?  Will  the  slow  grind  of  a  hundred  years  or  more 
lead  to  the  inevitable  decay  which  seems  to  come  to  all 
nations?  Are  the  seeds  sown  and  the  causes  for  decay 
already  with  us?  Are  the  corrupting  influences  of  the 
concentrated  wealth  of  to-day  to  continue,  adding  force 
to  force  while  government  and  individuals  are  swept 


^y 
£/  T I 


10  THE   WISCONSIN   IDEA 

under,  until  Stage  3  comes  into  existence?  Since  the 
American  revolution,  throughout  the  world,  and  par- 
ticularly in  Europe,  there  has  been  such  an  advance  in 
the  science  of  government  and  economics,  in  education 
and  general  intelligence,  that  we  are  tempted  to  hope 
that  history  may  not  repeat  itself.  If  that  hope  is 
justified,  it  will  be  due  to  the  new  economic  philosophy 
everywhere  guiding  the  lives  of  men  and  nations  in  the 

old  countries. 

1 1    •» 

When  one  sees  Germany,  once  a  country  of  poor 
peasants,  shot  over  by  every  conquering  swashbuckler, 
transformed  by  the  might  of  intelligence,  noble  philosophy 
and  keen  foresight  into  a  shining  example  for  the  rest  of 
the  world,  we  feel  certain  that  our  own  country  cannot 
long  remain  indifferent.  The  world  is  being  aroused  by 
her  enthusiasm.  England  with  her  crowded  cities  — 
poverty  and  discontent  stalking  everywhere  —  is  profit- 
ing by  Germany's  experience,  and,  guided  by'  her  wise 
Chancellor  Lloyd  George,  is  determined  to  use  similar 
devices  to  obtain  the  same  results. 
t  While  in  America  Stage  2  has  been  gradually  ap- 
broaching  Stage  3,  in  Germany,  Stage  3  of  one  hundred 
and  fifty  years  ago  has  gradually  approached  Stage  2  - 
yes,  even  Stage  i. 

Let  us  consider  one  of  the  ancient  cities  now  deserted 
and  buried.  It  was,  after  all,  a  beehive,  and  the  cause 
of  its  decay  was  a  very  simple  one  —  the  drones  shirked 


THE   REASON  FOR  IT  II 

while  the  workers  bore  the  burdens ;  the  drones  increased 
and  the  workers  bore  more  burdens,  and  so  it  continued 
until  the  workers  could  bear  no  more;  they  became 
dulled,  disheartened  and  discontented,  and  the  pauper 
and  the  proletariat  appeared.  The  drones  would  do  no 
work,  and  soon  the  whole  structure  came  tumbling  down, 
to  lie  covered  with  the  sands  of  the  desert.  Selfish 
power,  bad  government  and  oppression  brought  about 
its  ruin.  Why?  Because  men  forgot  that  prosperity 
exists  for  the  benefit  of  the  human  being  and  for  no  other 
purpose.  If  prosperity  does  not  uplift  the  mass  of 
human  beings,  it  is  not  true  prosperity,  however  it  may 
be  counterfeited  by  a  grand  show  of  fair  cities  or  the 
glories  of  its  riches. 

Indeed,  if  there  is  a  magnificent  building  built  in  any 
city  which  is  not,  either  directly  or  indirectly,  for  the 
purpose  of  improving  the  opportunities  and  increasing 
the  happiness  of  all  the  manhood  of  the  country,  it  is 
built  for  no  purpose,  and  were  better  not  in  existence. 

This  the  German  knows.  This  the  American,  secure 
still  in  the  mighty  phrases  of  the  Declaration  of  Inde- 
pendence, glorying  in  the  tarnished  grandeur  of  the  Con- 
stitution, boasting  of  his  riches  and  the  power  and 
might  of  his  material  things,  has  not  yet  discovered. 

Our  civilization,  with  its  wealth  and  prosperity,  must 
be  made  to  exist  for  its  true  purposes  —  the  betterment, 
the  efficiency  and  the  welfare  of  each  individual.  The 


12  THE   WISCONSIN  IDEA 

\    Germans  have  shown  us  the  way;   we  need  not  adopt 

all  their  methods,  but  we  will  do  well  to  accept  their 

AA  -  |    philosophy,  for  there  is  no  patent  on  it.    America  must 

w  cope  with  this  new  devastating  influence  of  wealth 
sanely  and  successfully  so  that  greater  prosperity  and 
more  equitable  distribution  of  its  benefits  under  just 
laws  will  result. 

A  German  prince  of  the  olden  time  awoke  one  morn- 
ing and  found  that  he  had  no  money.  He  sent  for  his 
treasurer,  who,  in  answer  to  his  demand,  declared  that 
there  was  none,  that  war,  robbery,  famine  and  injustice 
had  done  their  work  too  well.  Alarmed  by  this  reply 
the  prince  asked  the  treasurer  what  could  be  done  about 
it,  to  which  he  replied:  "My  lord,  we  cannot  collect 
taxes  unless  the  farms  produce;  the  farms  will  not 
produce  unless  the  farmer  works  them  intelligently;  he 
cannot  do  that  unless  he  receives  a  fair  profit,  protection 
and  an  opportunity  to  live  like  a  man  rather  than  a 
beast.  Give  me  a  portion  of  the  realm;  let  me  keep 
peace  and  do  justice,  and  the  farmer  will  produce  more 
and  will  pay  you  more  taxes."  The  prince  was  con- 
vinced and  gave  him  what  he  asked.  The  treasurer 
drove  out  the  cheating  rascals  who  had  acted  as  judges ; 
he  punished  the  drunken  soldier ;  he  protected  the  weak 
against  the  strong;  he  imprisoned  the  usurer  and  dis- 
missed the  tax  farmer;  he  provided  markets  and  ex- 
changes which  were  honest;  he  invested  heavily  in 


THE   REASON  FOR  IT  13 

roads  and  bridges;  but  best  of  all  he  taught  the  MAN.   j 
He  made  a  better  man,  a  more  efficient  machine;    he  |l/l/\> 
taught  him  how  to  be  a  better  farmer;  in  short,  he  did  ' 
what  our  efficiency  expert,  Mr.  Taylor,  does  to-day  in  a 
great  factory.     To  accomplish  this  he  did  not  hesitate 
because  of  expense,  yet  the  investment  was  good,  and 
after  a  time  the  prince  received  more  taxes  while  more 
happiness  and  prosperity  came  into  the  land. 

This  story  and  that  of  the  ruined  city  are  one,  and 
the  problem  they  reveal  is  our  problem.  It  is  possible 
that  their  solution  may  be  ours.  With  all  these  digres- 
sions in  mind,  let  us  return  to  our  diagram.  Let  us 
consider  the  problems  which  would  confront  a  business 
efficiency  expert.  Let  us  suppose  that  we  are  worTung 
with  him  and  put  down  the  questions  which  come  to  our 
minds.  They  may  help  us  in  reaching  a  solution. 

How  did  Stage  i  become  Stage  2  ?  To  find  this  out 
we  must  consider  what  is  represented  by  the  thin  line 
beneath  wealth. 

Who  are  our  richest  men  ?  Are  they  not  the  men  who 
have  made  use  of  that  Force  in  contract  which  comes  from 
monopoly,  artificial  or  natural  ?  The  long  list  of  oil  mag- 
nates, railroad  kings,  etc.,  certainly  seems  to  prove  it. 

Could  they  have  won  without  Force?  Perhaps  the 
strong  and  intelligent  might  have  done  so  —  very  slowly, 
to  be  sure  —  but  the  concentration  of  wealth  would  not 
have  been  so  great. 


14  THE   WISCONSIN  IDEA 

Are  there  not  bankers,  members  of  the  stock  ex- 
changes and  middlemen?  Yes,  but  are  they  not  all 
entangled  with  Force?  Do  they  not  manipulate  that 
mysterious  Force  in  contract?  Are  not  the  powers  of 
credit  and  monopoly  practically  one  ? 

Would  it  not  be  well  to  keep  that  thin  line  beneath 
wealth  in  Stage  2  from  growing?  Can  it  be  accom- 
plished ? 

Why  not  demand  that  when  monopoly  of  any  kind 
exists,  it  shall  be  restricted  to  a  reasonable  gain  ?  Why 
not  say  that  it  shall  not  discriminate  unjustly  nor  use 
its  great  power  against  the  public  welfare  ?  If  monopo- 
lies possess  such  Force  that  one  man  cannot  compete 
with  them,  why  not  let  the  state  —  all  men  combined 
-control  them?  Why  not  oppose  Force  by  Force? 
Is  there  any  other  way?  When  business  affects  the 
interests  of  all,  is  it  not  something  more  than  a  private 
matter  for  the  concern  of  a  private  individual  ? 

Why  not  take  by  taxation  some  of  that  wealth  ac- 
quired by  Force?  Why  allow  idle  sons  and  daughters 
to  waste  this  wealth ;  why  not  tax  them  by  graduated 
income,  inheritance  and  increment  taxes,  so  that  they 
bear  a  burden  proportionate  to  their  strength,  in  order 
that  the  burden  of  maintaining  the  state  shall  not  fall  so 
heavily  on  the  poor  ?  Will  this  be  permitted  ?  Will  not  that 
same  dreaded  Force  terrorize  our  legislators  ?  They  are  but 
human,  with  business  interests  and  families  to  support. 


THE  REASON  FOR  IT  15 

Why  not  make  public  the  affairs  of  monopolies,  so 
that  they  cannot  buy  the  votes  of  electors  or  legislators? 
Why  not  limit  the  power  of  wealth  in  elections?  It 
cannot  buy  the  whole  people,  can  it  ?  If  not,  why  not 
make  our  legislators  directly  responsible  to  us  so  that  we 
may  watch  them  ?  Why  not  simplify  the  whole  machinery 
of  nomination  and  election  so  that  we  are  certain  to 
elect  the  men  we  want  —  men  of  honesty  and  strength  ? 

But  do  not  the  trusts  defy  our  laws  after  we  have 
passed  them  ?  Who  is  powerful  enough  to  enforce  them 
for  us?  The  courts?  Theoretically,  yes,  but  prac- 
tically, do  we  not  need  something  nearer  to  the  legisla- 
tors—  a  strong  right  arm  of  the  legislature?  Should 
we  not  have  a  vigilant  servant  who,  with  the  help  of 
trained  experts  wily  enough  to  cope  with  every  turn, 
will  relentlessly  administer  and  enforce?  Should  not 
this  servant  be  a  friend  of  the  poorest  citizen,  a  friend 
to  whom  in  unfair  dealings  he  may  turn  and  receive 
justice  quickly  and  surely  ? 

But  the  efficiency  expert  will  say  that  we  have  omitted 
the  principal  problem.  The  German  treasurer  in  the 
story  went  down  to  the  unit  —  the  Man.  Why  <not 
teach  the  man  to  look  out  for  his  own  interests?  We 
must  make  him  more  efficient  so  that  he  can  plant  more 
and  make  more.  This  is  a  difficult  task  if  he  is  the 
slave  of  economic  necessity,  because  it  will  necessarily 
cost  money.  Truly,  but  can  we  not  obtain  some  of 


1 6  THE  WISCONSIN  IDEA 

that  money  from  the  graduated  taxation  of  which  we 
have  already  spoken,  or  in  the  way  that  Lloyd  George  is 
getting  it?  Why  not  invest  something  in  the  farmer 
and  the  mechanic  so  that  he  will  become  more  efficient, 
so  that  he  will  have  a  better  home,  better  prospects, 
and  greater  skill,  which  will  be  an  advantage  to  him  in 
contract?  While  we  are  teaching  him  this,  why  not 
teach  him  how  to  live  so  that  he  may  be  strong  and  vig- 
orous ;  why  not  show  him  his  rights  under  the  law  and 
advise  him  as  to  the  most  advantageous  way  in  which 
to  market  his  goods,  whether  it  be  his  skill  as  a  mechanic 
or  his  oats  ? 

We  have  followed  a  long  and  winding  path,  Mr. 
Reader,  to  show  that  no  one  categorical  explanation  of 
the  Wisconsin  idea  can  be  given. 

(Although  no  definite  plan  has  ever  been  laid,  strangely 
enough  the  development  of  the  efficiency  of  the  individual 
and  the  safeguarding  of  his  opportunity,  the  jealous 
guarding  of  the  governmental  machinery  from  the  invasion 
of  the  corrupting  force  and  might  of  concentrated  wealth, 
the  shackling  of  monopoly,  and  the  regulating  of  contract 
conditions  by  special  administrative  agencies  of  the  people 
have  been  under  way  to  some  slight  extent  in  Wisconsin. 
\  Why  should  not  the  state  be  the  Efficiency  Expert? 
Should  the  state  stand  idle  while  its  lands  are  despoiled 
and  its  people  are  placed  in  bondage  to  a  few  of  its  mem- 
bers? How  have  the  great  monopolies  gathered  their 


THE   SOIL  17 

power,  save  by  taking  to  themselves  governmental 
powers  because,  under  a  worn-out  doctrine  of  so-called 
industrial  freedom,  the  government  did  not  utilize  all 
its  functions?  Is  it  better  to  allow  such  irresponsible 
parties  to  have  the  power  of  fixing  rates  and  prices  rather 
than  the  state?  Is  it  better  to  permit  them  to  make 
the  laws  rather  than  the  state?  Can  they  fix  market 
and  credit  conditions,  say  who  shall  be  permitted  to  do 
business,  and  in  what  manner,  better  than  the  state? 
The  power  to  tax  is  the  power  to  destroy.  Shall  we 
allow  them  to  lay  whatever  tax  they  see  fit  upon  industry 
and  to  shift  their  own  burdens  where  they  will?  Shall 
we  allow  them,  when  they  are  fined  for  wrong-doing,  to 
shift  the  fine  to  the  persons  who  imposed  it  by  the 
simple  process  of  raising  the  rates  or  prices? 

The  reader  will  find  no  dogmatic  conclusions  set  forth 
in  these  pages.  He  will  be  disappointed  if  he  expects 
certain  vivid  pictures  of  perfect  legislation  or  adminis- 
tration or  clear-cut  philosophy.  He  will  find,  on  the 
contrary,  a  seemly  comprehension  of  the  difficulties  of 
the  problem  as  above  outlined  and  a  groping  after  and 
testing  of  one  device  after  another  to  serve  in  combating 
the  tendencies  considered.  He  will  find  that  patient 
research  and  care  have  been  the  watchwords  used  every- 
where. It  will  be  explained  how  one  piece  of  machinery 
made  another  necessary,  how  educational,  industrial  and 
welfare  legislation  were  deemed  the  wise  and  necessary 


1 8  THE   WISCONSIN  IDEA 

accompaniment  of  legislation  intended  to  revolutionize 
the  electoral  machinery,  which  itself  became  necessary 
in  order  to  initiate  and  assure  great  economic  legislation. 

Always  he  will  find  the  constant  harking  back  to  the 
just  regulation  of  the  conditions  of  contract  between  the 
powerful  and  the  weak  whenever  public  interest  de- 
manded it  —  the  cause  of  the  supreme  struggle  with 
which  the  movement  began  and  with  which  every  mile- 
stone is  marked. 

And,  Mr.  Reader,  do  not  think  that  this  program 
could  be  started  or  forwarded  on  its  way  for  one  moment 
without  conflict.  It  is  all  very  well  to  talk  of  construc- 
tive legislation  as  if  it  had  been  outlined  in  a  blue  print 
by  some  political  science  architect,  but  do  not  forget 
for  an  instant  that  there  was  a  relentless  war  in  this 
state  for  many  many  years  and  each  advance  was  made 
only  as  a  result  of  that  war.  The  history  of  that  struggle 
has  been  told  by  others.  This  little  book  attempts  to 
show  what  has  been  the  outcome  of  that  struggle  and 
of  the  combination  of  circumstances  and  conditions 
which  made  good  soil  for  certain  ideas  to  take  deep 
root. 


CHAPTER  II 

THE  SOIL 

ECONOMIC  pressure  generally  results  in  legislation.  If 
an  automobile  were  driven  wildly  upon  a  prairie  and 
neither  harmed  nor  killed  any  one,  there  would  be  no 
necessity  for  restrictive  legislation.  It  has  been  possible 
for  the  doctrine  of  industrial  freedom  to  exist  in  America 
for  a  similar  reason.  No  one  demands  laws  restricting 
the  rights  of  others  in  the  use  of  land  or  minerals  when 
there  is  an  abundance  of  both.  It  is  only  when  men 
touch  elbows  that  laws  which  narrow  and  define  human 
freedom  come  into  being.  A  new  country  requires 
capital,  and  capitalists  must  have  inducements  in  the 
form  of  tremendous  gain  in  order  to  assume  the  risk. 
In  a  new  country,  capital  is  a  goddess  to  be  propitiated. 
It  is  somewhat  surprising,  therefore,  that  the  doctrine  of 
the  power  of  the  state  should  spring  up  in  Wisconsin, 
which  in  1900  produced  more  lumber  than  any  other 
state  in  the  country.  One  would  scarcely  expect  that 
legislation  of  a  type  which  would  lead  one  to  think  that 
its  makers  believed  with  Professor  Schmoller  that  the 
state  is  "the  grandest  existing  ethical  institution"  would 
gain  a  stronghold  in  such  a  community. 

19 


\ 


n 


20  THE  WISCONSIN  IDEA 

It  is  strange  that,  notwithstanding  all  the  battles,  the 
constructive  legislation  growing  out  of  these  conditions 
was  of  such  an  orderly  character,  so  lacking  in  danger 
to  prosperity  and  so  harmonious  with  the  social  develop- 
ment of  the  state.  The  leaders  deserve  our  commenda- 
tion because  they  realized  the  necessity  for  this  thorough, 
painstaking  construction.  Fortunately  for  them,  the 
character  of  the  people  was  such  that  it  constituted  an 
element  contributing  to  the  advancement  of  their  plans. 

Wisconsin  is  fundamentally  a  German  state :  the 
Germans  were  the  first  to  arrive  in  significant  numbers, 
although  they  were  followed  later  by  a  large  influx  of 
Norwegians.  Both  of  these  peoples  from  the  great 
Teutonic  branches  have  been  noted  for  their  steadfast 
love  of  liberty  and  the  systematic  way  in  which  they 
proceed  with  government.  The  "forty-eight"  Germans, 
those  of  the  Carl  Schurz  type,  came  fresh  from  a  struggle 
for  liberty  in  the  old  country,  and  brought  with  them 
as  high  ideals  as  any  people  who  ever  came  to  America. 
Under  these  influences,  the  farms  of  Wisconsin  were 
settled  and  an  orderly,  careful  government  established. 
•  A  New  England  stream  arriving  about  the  same  time 
brought  with  it  high  educational  ideals,  which  endowed 
the  whole  Northwest  with  colleges  and  institutions  of 
learning.  It  was  under  these  auspices  that  the  Univer- 
sity of  Wisconsin  was  founded,  having  indelibly  im- 
pressed upon  it  a  certain  distinction  which  it  has  never 


THE   SOIL  21 

ceased  to  have,  and  certain  ideals  of  service  which  can 
be  found  in  no  other  universities  to-day,  except  perhaps 
in  Germany. 

It  is  significant  that  among  the  first  regents  of  the 
university  was  Carl  Schurz,  the  great  hater  of  bad 
government,  the  enthusiastic,  patriotic  statesman,  the 
powerful  champion  of  civil  service.  Instituted  as  it  was 
by  these  liberty-loving  people,  it  is  not  strange  that  the 
university  should  have  had  as  one  of  its  great  presidents, 
John  Bascom,  a  man  of  the  highest  type  of  New  England  i 
character.  Bascom  was  an  economist ;  he  was  more  than 
an  economist.  Political  economy  to  him  was  not  a  dismal 
science ;  it  was  a  science  by  means  of  which  order,  mo- 
rality and  statesmanship  could  live ;  it  had  a  moral  force. 

He  declared  "that,  while  the  laws  of  legitimate  ac- 
quisition look  to  the  good  of  all,  and  not  to  the  plunder 
of  any,  any  illegitimate  action  which  violates  a  higher, 
a  moral  law,  will  usually  violate  a  lower,  an  economic 
law,  and  measure  the  gains  of  one  by  the  losses  of  an- 
other. There  is  a  harmony  of  productive  action  by 
which  the  gains  of  all  are  secured,  and  the  laws  of  this 
harmony  are  those  of  Political  Economy.  Intimately 
connected  with  this  view,  is  that  by  which  the  harmony 
of  the  lower  laws  of  acquisition  with  the  higher  laws  of 
morals  is  seen,  and  the  mutual  strength  which  they  lend 

0 

to  each  other.  The  state  of  highest  production  not  only 
may  be,  but  must  be,  the  state  of  highest  intelligence  and 


22  THE   WISCONSIN  IDEA 

A  page  from  the  directory  of  the  officers  and  students 
in  the  University  of  Wisconsin.  Note  the  German  and 
Scandinavian  stock! 

Knott,  Rodney  D.,  Eau  Claire,  A  Mid  i — 4445 

Knotts,  Frank,  Gary,  Ind.,  E  1—3683 

Knox,  Flora  R.,  Milwaukee,  L  S  4 — 307 

Knudson,  Barney,  Algoma,  E  i — 1611 

Knudson,  Jeanette  L.,  Madison,  L  S  4 — 1797 

Knutson,  Martin  H.,  Ridgeway,  A  3 — 2811 

Koch,  Harry  J.,  Davenport,  la.,  C  C  1—3982 

Koch,  Orville  C.,  Plymouth,  C  C  2—3187 

Koch,  Oswald  T.,  Osceola,  L  S  4 — 4529 

Koch,  Vincent  W.,  Janesville,  L  S  3  Med  i — 197 

Koehier,  Jennie  E.,  Menomonee  Falls,  H  Econ  2 — 2560 

Koehsel,  Minnie  C.,  Madison,  L  S  3 — 547 

Koenig,  Alfred  E.,  Madison,  L  S  Grad — 1026 

Koenig,  Ruby  E.,  Two  Rivers,  L  2 

Koepke,  William  C.,  Waukesha,  Nor  C  3 

Koester,  George  F.,  Chicago,  111.,  L  S  2—178 

Kohl,  Edwin  P.,  Marshfield,  L  S  3—1141 

Kohler,  Bert  M.,  Chicago,  111.,  L  S  3—2744 

Kolls,  Alfred  C.,  La  Crosse,  L  S  3  Med  1—805 

Koltes,  Raphael  P.,  Waunakee,  L  S  2 — 2672 

Kolinsky,  Pete  C.,  Racine,  L  S  4  L  1—2864 

Konig,  Selma  S.,  Weyauwega,  L  S  4 — 4004 

Kootz,  Arthur  C.,  Milwaukee,  L  S  2—186 

Korst,  Philip  B.,  Janesville,  M  E  3 — 2999 

Kottnauer,  Edwin  H.,  Milwaukee,  Ch  E  Ad  Sp  2 

Kouns,  Sarah  M.,  Upper  Sandusky,  O.,  L  S  2 — 1488 

Kowyowundjian,  Garabet,  Racine,  E  i 

Kozarek,  Steven  A.,  Antigo,  C  E  4 — 2257 

Kraemer,  Edward  C.  A.,  Milwaukee,  A  i 

Kragh,  Stella  M.,  Madison,  L  S  4 — 2923 

Kratz,  Clara,  Schleisingerville,  M  3 — 2737 

Krause,  Emil  F.,  Sawyer,  E  i 

Krause,  Linnie,  Ridgeland,  L  S  4 

Kraus,  Raymond  J.,  Marshfield,  E  E  3 — 3036 

Kreis,  Elizabeth,  Wheaton,  111.,  L  S  1—156 

Krell,  Samuel  A.,  Madison,  C  E  4  Adv  C— 4779 

Kremer,  Eugene  E.,  Fond  du  Lac,  L  S  4 — 2864 

Kremers,  Roland  E.,  Madison,  L  S  i 


THE   SOIL  23 

virtue;  and  the  highest  intelligence  and  virtue  cannot 
fail  to  be  productive  of  the  greatest  wealth.  The  in- 
terests of  production  are  often  seen  to  be  so  parallel 
with  the  path  of  virtue,  as  to  be  more  provocative  of 
virtue  than  virtue  herself.  The  admirable  interaction 
of  the  laws  of  the  several  departments  of  man's  social 
nature,  the  mutual  support  which  they  render  each 
other,  and  the  general  concurrence  of  their  motives, 
present  topics  not  less  suggestive  of  divine  skill  than 
those  of  the  external  world."  He  taught,  he  philoso- 
phized, and  he  left  a  deep  impression  upon  this  state 
and  upon  the  university.  In  his  classes  were  men  like 
Senator  Robert  M.  La  Follette,  Judge  Robert  G.  Sie- 
becker  of  the  Wisconsin  supreme  court,  and  Charles  R. 
Van  Hise,  now  president  of  the  University  of  Wisconsin. 

On  December  13,  1911,  memorial  services  were  held 
for  this  man  at  the  university.  The  full  tide  of  his 
influence  was  clearly  shown  at  that  time,  the  beginnings 
of  which  Bascom  himself  had  lived  to  see.  The  follow- 
ing tributes  paid  to  his  memory  show  the  respect  for 
and  appreciation  of  his  work  and  influence. 

Said  Judge  Siebecker  on  that  occasion :  — 

"  He  held  to  the  principle  that  we  are  bound  in  duty  to  use  the 
school  as  a  means  of  helpfulness  in  the  world  and  that  every  true 
educational  principle  takes  issue  with  any  system  of  instruction 
that  omits  to  call  upon  the  school  to  take  its  place  in  the  state  as  a 
constructive  agency  in  the  highest  social  economy." 


24  THE   WISCONSIN   IDEA 

Dean  E.  A.  Birge  said :  — 

"  I  question  whether  the  history  of  any  commonwealth  can  show 
so  intimate  a  relation  between  the  forces  which  have  governed  its 
social  development  and  the  principles  expounded  from  a  teacher's 
desk,  as  that  which  exists  between  Wisconsin  and  the  classroom 
of  John  Bascom.  No  social  and  political  movement  is  even  in 
part  the  work  of  one  man  or  one  set  of  men,  and  no  one  who  knows 
the  history  of  Wisconsin  can  be  ignorant  that  the  state  was  fully 
alive  to  the  need  of  economic  reform  before  Dr.  Bascom  came  here, 
and  that  it  was  ready  to  attempt  to  put  such  reform  into  practice. 
But  it  is  equally  true  that  no  social  influence  in  Wisconsin  during 
the  past  generation  has  been  more  potent  than  that  of  Dr.  Bascom 
—  all  the  more  potent  during  the  quarter  of  a  century  in  which  it 
has  been  silent.  The  social  movement  of  the  state  has  been  rapid, 
sane  and  just,  an  unusual  and  rare  combination  of  qualities. 
Among  the  foremost  influences  that  have  secured  these  qualities 
are  those  radiating  from  Dr.  Bascom's  classroom,  appealing  first  to 
his  immediate  students ;  less  immediately,  but  still  directly,  to  the 
many  students  of  the  university  who  did  not  get  to  his  classroom, 
and  through  all  these  affecting  the  temper  of  the  people  of  the  state." 

Strange  as  it  may  seem,  the  same  philosophy  which 
was  being  taught  in  the  University  of  Wisconsin  was 
slowly  becoming  the  dominating  influence  in  Germany. 
The  strength  of  this  theory,  even  in  remote  times,  is 
clearly  shown  in  the  writings  of  early  German  economists. 
The  belief  that  it  pays  the  state  to  concern  itself  in  the 
betterment  of  human  beings  and  the  protection  of 
human  welfare,  in  order  that  it  may  receive  in  return  a 
rich  reward  from  this  investment,  is  not  a  new  one. 


THE  SOIL  25 

While  Germany,  shattered  by  the  Napoleonic  wars,  was 
striving  to  solve  her  problems  through  methodical  dg- 
velopmejit  under  the  iron  hand  of  Bismarck,  Wisconsin, 
the  great  German  state  of  this  nation,  was  slowly  form- 
ing, through  the  university  and  its  teachers,  certain 
ideals  which  in  the  future  were  to  have  a  marked  effect 
upon  its  legislation.  In  Germany  the  scholar  was  recog- 
nized and  respected  as  a  leader ;  in  the  German  univer- 
sities the  lamp  of  liberty  was  ever  kept  burning  brightly. 
It  was  to  the  German  scholar  that  Bismarck  invariably 
turned  for  aid  in  the  development  of  the  legislation 
which  has  characterized  Germany  for  so  many  years 
past  —  the  legislation  which  built  it  up  from  a  country 
of  poor  peasants  to  a  great  nation,  second  to  none  in 
the  prosperity  and  the  happiness  of  its  people.  While 
this  German  movement,  with  its  practical  system  of 
economics,  was  slowly  growing  and  developing  in  its 
universities,  other  economic  and  political  ideals  had 
dominated  England  and  were  transplanted  to  America. 
Even  before  the  time  of  Napoleon,  there  had  dawned  in 
England  the  philosophy  of  laissez  faire.  The  history  of 
its  expansion  through  the  school  of  Adam  Smith  and 
John  Stuart  Mill,  every  schoolboy  knows.  The  idea  in 
it  of  independence  and  personal  and  industrial  liberty 
suited  our  American  spirit.  The  concept  that  the  state 
should  have  nothing  to  do  with  the  affairs  of  men,  that 
the  state  was  a  necessary  evil,  that  men  do  best  when 


26  THE  WISCONSIN  IDEA 

left  alone,  appealed  to  the  men  of  America,  as  it  did  to 
the  immigrants,  who  rushed  to  our  ports  from  the  coun- 
tries of  Europe,  land-hungry  and  sickened  by  the  laws 
which  had  bound  them  in  the  old  country.  It  was  not 
strange  that  the  doctrine  of  industrial  liberty  took  deep 
root  in  America  and  found  its  way  into  our  law  and 
into  the  teachings  of  our  professors.  While  the  able 
and  inspiring  Professor  William  G.  Sumner,  the  teacher 
of  President  Taft  and  of  State  Senator  John  M.  White- 
head,  the  great  opponent  of  La  Follette,  was  expounding 
this  philosophy  in  no  uncertain  phrases  at  Yale,  while 
the  eastern  colleges  were  everywhere  satisfied,  both  in 
the  law  schools  and  in  the  courses  of  political  economy, 
with  this  doctrine  of  industrial  liberty,  there  was  being 
evolved  in  Wisconsin  under  German  influences  a  new 
doctrine  which  did  not  take  form  save  in  humane  ways, 
until  after  its  teacher  had  ceased  his  activities.  But 
John  Bascom  and  his  economic  teaching  were  not  for- 
gotten; nor  were  Carl  Schurz  and  his  political  ideals 
forgotten. 

In  Germany,  prosperity  had  not  resulted  immediately 
from  the  efforts  of  her  economists,  and  the  Germans,  flee- 
ing from  the  poverty  of  the  old  country  and  arriving  on 
our  shores  by  the  hundreds  of  thousands,  were  slow  to 
realize  the  mighty  forces  at  work  which  were  destined 
to  stop  that  tide  and  show  to  all  men  the  wisdom  of  the 
new  doctrine  of  the  judicious  interference  of  the  state. 


THE   SOIL  27 

When  Sumner  was  in  his  prime  and  the  eastern  col- 
leges were  dominated  by  his  great  mental  strength  and 
the  clearness  and  force  of  his  lectures  and  writings,  a 
student  left  Columbia  university  and  went  to  Germany 
to  study  under  Carl  Knies  and  Wagner;  there  he  ab- 
sorbed the  inspiration  of  New  Germany.  He  saw  an 
empire  being  fashioned  by  men  regarded  in  his  own 
country  as  merely  theorists ;  he  realized  that  these  Ger- 
mans were  more  than  mere  theorists ;  that  they  studied 
the  problem  of  human  welfare;  that  they  were  laying 
the  foundations  for  a  great  insurance  system ;  that  they 
foresaw  the  commercial  prosperity  of  the  country  built 
upon  the  happiness,  education  and  well-being  of  the 
human  units  of  the  empire;  that  order,  intelligence, 
care  and  thought  could  be  exercised  by  the  state.  Im- 
bued with  inspiration  by  these  great  teachers,  this  young 
man  returned  to  America.  He  walked  the  streets  to 
obtain  employment  as  a  teacher,  and  after  nearly  starv- 
ing, was  engaged  by  a  kind  Jew  as  tutor  to  his  children. 
Finally,  after  many  vicissitudes,  he  became  an  instructor 
at  Johns  Hopkins  university.  Gradually  the  country 
began  to  understand  that  a  new  teacher  had  appeared 
in  America.  Books  on  economics  were  issued  which 
actually  seemed  to  deny  the  old  " wages  fund"  doc- 
trine and  the  theories  of  value  which  were  promised 
by  the  economist  in  England  and  in.  this  country. 
In  fact,  many  thought  that  what  he  wrote  was  not 


28  THE   WISCONSIN  IDEA 

political  economy  at  all;  they  did  not  recognize  it  as 
such.  His  books  and  his  articles  began  to  attract 
attention,  probably  because  people  began  to  feel,  in 
a  vague  way,  that  something  was  wrong  with  our  phi- 
losophy. 

The  captains  of  industry  held  sway  in  our  country,  the 
great  trusts  began  domineering  our  political  life,  the  coun- 
try began  to  be  more  crowded,  periods  of  depression  came 
oftener,  and  the  old  doctrine,  advocated  by  Sumner  - 
that  the  state  should  not  interfere  with  industrial  life  — 
was  not  altogether  satisfactory.  A  group  of  thinkers 
began  to  follow  the  leadership  of  this  man.  Richard  T. 
Ely  finally  came  to  the  University  of  Wisconsin  as  a 
professor  of  economics.  Here  was  another  singular 
coincidence.  The  pupil  of  Knies  and  Wagner,  coming 
from  Germany  with  his  German  political  ideals,  suc- 
ceeded Bascom  as  a  teacher  of  political  economy  in  the 
German  university  of  the  German  state  of  Wisconsin. 
A  curious  condition  surely!  He  was  regarded  as  a 
socialist,  and  before  long  was  tried  by  the  regents  of  the 
University  of  Wisconsin  as  a  socialist.  After  great  ex- 
citement, which  is  still  remembered  throughout  the  state, 
he  was  acquitted,  and  the  regents  in  acquitting  him  gave 
forth  the  following  statement:  — 

"  In  all  lines  of  investigation  ...  the  investigator  should  be 
absolutely  free  to  follow  the  paths  of  truth,  wherever  they  may 
lead.  Whatever  may  be  the  limitations  which  trammel  inquiry 


THE   SOIL  2Q 

elsewhere,  we  believe  the  great  state  of  Wisconsin  should  ever  en- 
courage that  continual  and  fearless  sifting  and  winnowing  by  which 
alone  the  truth  can  be  found." 

Hence  it  is  not  surprising  that  in  the  republican  plat- 
form for  1910,  after  the  University  of  Wisconsin  had 
gone  through  a  trying  siege  in  which  its  professors  were 
again  accused  of  being  socialists  and  of  "  interfering  in 
politics,"  that  a  political  party,  dominated  by  a  student 
of  Bascom's,  and  having  in  it  many  of  the  students  of 
Ely,  should  have  repeated  word  for  word  the  same 
phrases  which  were  written  seventeen  years  previous, 
nor  that  the  class  of  1910  should  have  presented  a 
tablet  to  the  University  of  Wisconsin,  inscribing  upon  it 
the  following  portion  of  that  acquittal :  — 

"  Whatever  may  be  the  limitations  which  trammel  inquiry  else- 
where, we  believe  that  the  great  state  of  Wisconsin  should  ever 
encourage  that  continual  and  fearless  sifting  and  winnowing  by 
which  alone  the  truth  can  be  found." 


Thus  succeeding  Bascom  and  Ely  came  a  long  line  of 
young  men,  many  of  them  of  German  or  Scandinavian 
stock,  who  were  impressed  with  the  ideas  that  Ely  ex- 

WM. 

pounded  at  that  time.  He  preached  a  curious  new  doc- 
trine, a  "new  individualism,"  that  men  deserved  the 
right  of  opportunity  and  benefited  by  it ;  that  it  was  the 
duty  of  the  state  to  preserve  to  them  opportunities ;  that 
the  state  was  a  necessary  good  and  not  a  necessary  evil ; 


30  THE   WISCONSIN  IDEA 

that  the  great  institution  of  private  property  was  good, 
and  furthermore  existed  for  public  good,  but  that  if  any 
particular  part  of  it  did  not  exist  for  public  good,  it 
should  be  made  to  do  so.  He  was  practically  the  organ- 
izer of  the  American  economic  association.  The  prin- 
ciples he  laid  down  have  extended  over  the  country  and 
are  being  taught  in  all  the  principal  colleges ;  his  pupils 
have  inspired  men  who  have  taught  others.  He  has 
gathered  about  him  in  the  University  of  Wisconsin  a 
group  of  men  who  have  studied  with  him  and  received 
inspiration  from  him.  At  a  recent  meeting  of  the 
American  economic  association  it  was  found  that  there 
were  present  seventy  professors  or  instructors  in  colleges 
who  at  some  time  in  their  career  had  been  his  pupils. 

The  doctrine  that  the  state  should  have  more  to  do 
with  economic  welfare  had  spread  throughout  the  en- 
tire country,  but  in  no  place  had  it  found  better  soil 
nor  had  greater  results  than  in  the  German  state  of  Wis- 
German  professors  have  come  repeatedly  to 
risconsin  and  have  been  surprised  by  the  German 
>irit  in  the  university.  Therefore  it  is  only  natural 
that  the  legislation  of  Wisconsin  should  receive  an  im- 
petus from  men  who  believe  that  laws  can  be  so  con- 
structed as  to  lead  to  progress  and  at  the  same  time 
preserve  to  the  fullest  all  human  betterment ;  that  the 
advice  of  scholars  may  be  sought ;  that  what  has  made 
Germany  happy  and  prosperous  may  be  duplicated  in 


THE   SOIL  31 

Arnerjc a ;  that  business  and  human  welfare  can  increase 
side  by  side  and  that  the  best  investment  which  the  state 
can  make  is  that  which  makes  every  home  better,  for 
when  intelligence  goes  into  the  product,  that  product 
will  win  out  in  the  race  for  the  commercial  supremacy  of 
the  world.  If  Wisconsin  is  a  prosperous  state  to-day, 
there  is  no  doubt  that  it  is  largely  because  of  German 
ideas  and  ideals,  early  instituted  in  the  state. 

The  Scandinavian  element  came  later,  but  was  ani- 
mated by  the  very  same  ideals.  Indeed,  they  became 
stimulated  in  many  cases  before  they  came  to  Wisconsin. 
Every  Norwegian,  Swede  or  Dane  who  pays  a  visit 
to-day  to  the  Scandinavian  countries  returns  an  easy 
convert  to  the  ideals  which  seem  to  have  dominated 
Wisconsin  during  the  last  decade  or  more.  Many  of  the 
leaders  are  found  among  the  Scandinavians.  Many  im- 
portant posts,  influential  in  the  guidance  of  the  different 
commissions,  are  filled  by  men  who  have  traditions  from 
the  old  countries.  It  is  worthy  of  comment  that  a 
Scandinavian  statistician  was  responsible  for  the  de- 
tailed statistical  work  of  the  railroad  commission  and 
that  another  gifted  man  of  Norwegian  stock  has  been 
the  chief  means  of  promoting  splendid  insurance  laws  in 
this  state.  The  Norwegian  element  is  much  more  active  1 
than  the  German  in  politics ;  it  is  much  more  aggressive^J^ 
For  many  years  one  of  the  most  talented  members  of  the 
tax  commission  has  been  of  that  race,  and  it  is  not  un- 


32  THE   WISCONSIN  IDEA 

usual  in  the  legislative  body  to  hear  Norwegians,  Danes 
or  Swedes  quote  in  debate  the  high  standards  maintained 
in  Norway  or  in  the  Scandinavian  countries.  Men  fa- 
miliar with  foreign  agricultural  methods  and  those  trained 
in  the  people's  high  schools  of  Denmark  or  in  the  scien- 
tific schools  of  Sweden  or  Norway  are  helping  to  organize 
county  agricultural  schools.  Behind  this  Wisconsin  move- 
ment  is  a  great  body  of  tradition,  a  tradition  of  orderliness 
and  of  scientific  methods,  a  knowledge  that  things  can  and 
should  be  done  by  experts  in  a  careful  and  diligent  man- 
ner and  that  progress  must  come,  slowly  but  thoroughly. 
If  we  are  going  to  understand  Wisconsin  legislation,  we 
must  fully  realize  that  jthe  leaders  of  it  could  not  be^agi- 
tators  of  the  type  which  is  seen  frequently  in  other  parts 
of  the  country.  However  radical  their  ideas  mayTave' 


been,  however  original  their  methods,  it  was  inevitable 
that  legislation  should  be  constructed  slowly  and  cau- 
tiously. The  men  who  have  had  the  greatest  influence 
in  making  that  legislation  what  it  is,  were  inspired  by  these 
ideals.  The  peoplejrf  Wisconsin  would  not  have  supported 
any  wild  or  extravagant  legislative  schemes.  The  stock 
is^Too  sturdy,  too  cautious ^  and  Jpo  conservative  to  be 
swayed  by  any  revolutionary  influence.  The  leaders  had  a 
stubborn,  determined  people  with  whom'  to  deal.  They 
were  slow  to  move,  as  they  are  to-day,  and  it  took  long 
patience  and  fighting  to  win  them,  but  once  moved; they 
"stayed  put." 


THE   SOIL  33 

It  must  be  remembered  that  there  have  been  those 
who  believed  in  the  social  or  educational  features,  who 
wavered  or  halted  in  the  long  fight  because  of  certain 
political  legislation  hereafter  described.  There  have 
been  some  who  opposed  the  political  changes,  but  who 
are  now  seemingly  acquiescing  or  even  actually  approv- 
ing because  of  what  seems  to  be  fairly  good  and  sane 
results  from  the  last  decade  of  political  innovation  and 
economic  regulation. 


CHAPTER  III 

THE  REGULATION  OF  BUSINESS  AFFECTED  BY  A  PUBLIC 
INTEREST 

THE  railroad  was  tne  first  of  the  great  monopolies  to 
need  regulation.  The  settler  coming  into  a  new,  raw 
country  was  absolutely  dependent  upon  transportation 
facilities;  it  was  natural  that  he  should  treat  the  rail- 
road like  a  spoiled  child,  and  it  was  likewise  natural 
that  the  railroad  should  take  advantage  of  him.  Human 
selfishness  unless  checked  will  always  take  such  ad- 
vantage. It  must  be  remembered  too  that  the  securing 
of  capital  to  bring  a  railroad  into  new  territory  was  no 
easy  task  and  the  man  who  did  it  was  entitled  to  a  large 
reward.  Abuse,  however,  was  inherent  in  the  system. 

The  farmer  had  one  great  Necessity  —  transportation. 
Transportation  was  in  the  hands  of  a  monopoly  —  the 
railroad.  The  farmer  was  obliged  to  send  his  grain  to 
market;  the  railroad,  having  Advantage  on  its  side, 
demanded  its  price.  The  farmer  answered  that  he 
could  not  pay  it  and  have  any  profit.  He  appealed  for 
justice  and  was  told  that  there  was  common  law  govern- 
ing public  carriers  which  would  relieve  him  from  extor- 
tion. With  confidence  in  our  constitution  and  the 

34 


THE  REGULATION   OF   BUSINESS  35 

judiciary,  he  went  before  the  courts,  calling  for  justice, 
and  demanded  his  "day  in  court."  He  got  it,  but  there 
were  too  many  days  in  court.  He  appealed,  and  he 
fought  and  went  from  court  to  court,  single  handed, 
always  impeded  by  increasing  Necessity.  Wiser  and 
sadder,  but  deeply  perplexed,  he  learned  that  the  vaunted 
common  law  was  strong  in  name  but  a  shambling  thing 
in  action.  He  gave  up  stubbornly;  he  had  been  told 
of  the  glories  of  our  constitution,  and  yet  he  could  not 
but  believe  that  there  was  something  wrong,  but  re- 
sented as  unpatriotic  any  such  thought.  It  took  a  long 
time  for  him  to  learn  that  if  he  would  live,  he  must 
accept  the  terms  of  the  all-powerful  one  who  could 
either  make  or  break  him ;  he  learned  to  do  the  political 
bidding  of  the  one  who  had  Advantage.  He  became  a 
cynic  and  distrusted  the  "agitators,"  of  whom  he  was 
warned  by  the  agents  of  the  powerful  one. 

Turn  back  through  the  pages  of  history,  study  them 
well  and  read  the  results  of  this  advantage  in  contract 
in  the  old  days,  as  depicted  by  A.  B.  Stickney,  a  railroad 
president :  — 

"  The  managing  officers  were  now  potentates,  — '  railroad  mag- 
nates/ '  railroad  kings.'  They  travelled  in  state,  surrounded  by 
their  personal  staff,  the  heads  of  the  different  departments,  who 
were  almost  as  important  personages  as  their  chiefs.  When  they 
visited  a  town  on  their  lines,  the  principal  business  men  rushed  to 
greet  them.  The  fat  of  the  land  was  at  their  disposal.  Merchants 


36  THE   WISCONSIN  IDEA 

sent  baskets  of  champagne  to  the  heads  of  the  traffic  departments 
and  sealskin  jackets  to  their  wives,  while  on  the  other  hand,  special 
rates  were  liberally  bestowed  upon  their  favorites.  Special  clerks 
were  required  to  be  wholly  employed  in  issuing  free  passes.  Judges 
and  juries  seemed  to  have  a  perceptible  bias  in  their  favor,  the 
brightest  attorneys  were  retained,  and  minor  officials  were  glad  to 
grant  them  favors.  The  country  press  was  subsidized  with  passes 
for  editors,  their  families  and  their  friends." 

A  distinguished  Englishman,  the  author  of  "The 
American  Commonwealth,"  describing  the  palmy  days 
of  the  dynasties,  says:  — 

"  These  railway  kings  are  among  the  greatest  men,  perh  ,ps  I 
may  say  are  the  greatest  men,  in  America.  They  have  wealth, 
else  they  could  not  hold  the  position.  They  have  fame,  for  every 
one  has  heard  of  their  achievements ;  every  newspaper  chronicles 
their  movements.  They  have  power,  more  power  —  that  is,  more 
opportunity  of  making  their  personal  will  prevail  —  than  perhaps 
any  one  in  political  life,  except  the  President  and  the  Speaker,  who, 
after  all,  hold  theirs  only  for  four  years  and  two  years,  while  the 
railroad  monarch  may  keep  his  for  life.  When  the  master  of  one 
of  the  greatest  Western  lines  travels  towards  the  Pacific  on  his 
palace  car,  his  journey  is  like  a  royal  progress.  Governors  of  states 
and  territories  bow  before  him ;  legislatures  receive  him  in  solemn 
session ;  cities  and  towns  seek  to  propitiate  him,  for  has  he  not 
the  means  of  making  or  marring  a  City's  fortunes  ? 

"  Such  was  the  beginning  of  the  dynasties  of  absolution  in  the 
management  of  Western  railways  (under  the  conditions  of  modern 
civilization  the  public  highways  of  the  land),  which  have  since 
afflicted  the  business  of  the  country,  and  are  now,  by  both  a  reflex 
and  direct  influence,  crushing  the  business  of  the  railway  companies 


THE  REGULATION   OF   BUSINESS  37 

as  well,  and  gradually  reducing  these  noble  properties  to  the  verge 
of  bankruptcy.  Conceived  in  the  womb  of  usurpation,  nurtured 
by  the  power  of  might,  these  dynasties  take  no  note  of  the  progress 
of  the  world  of  thought  or  of  changed  conditions,  but,  like  their 
Bourbon  prototypes,  they  neither  move  forward  nor  backward, 
they  neither  learn  nor  forget." 

How  could  an  individual  contend  against  a  force  like 
that?  In  the  words  of  Chief  Justice  Ryan,  in  the  first 
great  railroad  case  in  Wisconsin, 

"  Their  influence  is  so  large,  their  capacity  for  resistance  so 
formidable,  their  powers  of  oppression  so  various,  that  few  private 
perso  is  could  litigate  with  them,  still  fewer  persons  would  litigate 
with  them  for  the  little  rights  or  the  little  wrongs  which  go  so  far 
to  make  up  the  measure  of  the  average  prosperity  of  life." 

But  a  few  kept  on  with  the  fight,  and  notwithstand- 
ing the  power  of  the  railroads,  the  "Granger  movement" 
suddenly  took  form.  Someway  or  somehow  it  was 
realized  that  the  state  —  the  whole  body  of  citizens  as 
a  unit  —  could  collectively  accomplish  what  one  man, 
single  handed,  could  not,  i.e.  equalize  the  conditions  of 
contract  by  placing  force  against  force.  This  is  why  the 

Potter  law"  for  the  control  of  railroads  was  enacted  in 
Wisconsin  in  the  early  seventies.  That  law  was  a  crude 
attempt ;  it  was  full  of  long  schedules  of  rates  made  in 
a  haphazard  manner  by  the  legislative  committees.  It 
did,  however,  lay  down  the  precedent  that  when  a  force 
is  so  great  that  no  one  individual  can  meet  it  and  receive 


38  THE   WISCONSIN   IDEA 

fair  treatment,  justice  must  be  given  to  that  individual 
/  by  the  aid  of  the  state. 

A  weak  organization  of  straw,  called  by  courtesy  a 
railroad  commission  —  an  elected  commission  —  was 
next  established  as  a  sop  to  public  opinion.  This  did 
not  relieve  the  situation,  but  left  the  complainant  still 
bearing  the  burden  of  litigation. 

It  was  many  years  before  there  appeared  to  again 
arouse  public  opinion  a  far-seeing  and  persistent  fight- 
ing man,  A.  R.  Hall,  to  whose  memory  there  is  a  bronze 
tablet  in  the  new  capitol  in  Madison.  Public  sentiment 
had  become  so  deadened,  the  railroads  had  become  so 
powerful  in  the  affairs  of  business,  and  the  manufac- 
turers and  business  men  of  the  state  were  so  fearful  that 
"capital  would  be  driven  out  of  the  state"  by  any 
restrictive  legislation,  that  A.  R.  Hall  was  literally  jeered 
at  and  laughed  down  as  a  crank  when  he  persistently 
introduced  his  railroad  bills  into  the  legislature.  His 
work,  however,  was  not  without  results.  A  stronger 
movement,  led  by  Robert  M.  La  Follette,  now  United 
States  Senator,  soon  awakened  the  people,  swept  the 
state  and  made  La  Follette  governor.  Hall  had  per- 
sistently advocated  the  ad  valorem  taxation  of  railroads. 
This  was  made  an  important  issue  and  was  finally  passed. 
In  this  case,  what  Walt  Whitman  once  said  proved  true, 

"  It  is  provided  in  the  essence  of  things  that  from  any  fruition 
of  success,  no  matter  what,  shall  come  forth  something  to  make  a 
greater  struggle  necessary." 


THE   REGULATION   OF   BUSINESS  39 

What  was  to  prevent  the  railroad  from  raising  the 
rates  in  order  to  provide  for  the  increased  taxes  ?  Some 
protection  was  necessary,  so  in  1903  a  bill  was  intro- 
duced based  upon  the  Iowa  plan,  whereby  the  commis- 
sion made  a  schedule  of  rates  for  the  railroads  to  follow. 
This  bill  was  the  cause  of  a  severe  battle  in  the  legisla- 
ture, but  was  finally  defeated.  The  railroad  question 
was  made  the  issue  of  the  next  campaign,  and  the  lead- 
ers determined  to  make  the  most  perfect  law  possible. 
The  Iowa  plan  was  abandoned  and  the  country  was 
scoured  for  advice;  the  regulative  law  of  all  the  dif- 
ferent states  and  of  foreign  countries  was  closely  scruti- 
nized. No  more  patient  study  was  ever  given  to  any 
one  bill  in  the  history  of  the  state.  The  leader  in  all 
this  research  was  Senator  W.  H.  Hatton,  a  man  of  large 
business  interests  and  great  ability.  He  introduced  a 
1  new  princfple  and  laid  down  the  thesis  that  it  was  as 
much  the  duty  of  the  state  to  furnish  transportation 
facilities  as  it  ever  had  been  to  make  roads  or  build 
bridges,  and  that  if  the  function  was  delegated  to  any 
one,  it  was  the  duty  of  the  state  to  regulate  it  so  that 
the  agent  should  be  required  to  furnish  adequate  service, 
at  reasonable  rates  without  discrimination.  When  the 
legislature  opened  Mr.  Hatton  was  appointed  chairman 
of  the  senate  committee  on  railroads  and  began  his  long 
and  patient  struggle  for  the  passage  of  the  bill  in  spite 
of  practically  a  hostile  majority.  During  this  entire 


40  THE   WISCONSIN   IDEA 

contest,  he  was  aided  by  a  keen  lawyer  and  able  debater, 
Senator  George  B.  Hudnall,  whose  vigorous  work  on 
this  committee  is  worthy  of  comment.  Draft  after 
draft  of  the  bill  was  submitted  to  the  railroad  attorneys, 
university  professors  and  to  all  the  experts  available 
whose  arguments  and  criticisms  were  duly  considered. 
Months  went  by.  Seeing  the  railroad  attorneys  con- 
stantly around  the  committee,  the  more  radical  and  im- 
patient of  the  legislative  leaders  began  to  assert  that 
they  were  being  betrayed.  In  due  season  Mr.  Hatton 
presented  the  bill,  which  was  so  strong  and  fair  that  no 
real  attack  could  be  made  upon  it. 

This  act  is  of  great  importance,  for  it  laid  the  founda- 
tion for  a  series  of  laws,  many  of  them  following  its  exact 
language,  and  it  has  been  considered  in  detail  not  only 
because  of  its  importance,  but  also  to  show  how  patiently 
and  thoroughly  Wisconsin  acts  are  prepared.  The  legis- 
lature is  seldom  impatient ;  it  has  recently  adopted  the 
expedient  of  drafting  tentative  bills,  giving  hearings  and 
redrafting  bills  through  investigating  committees,  a  long 
while  before  the  opening  of  the  legislative  session.  The 
procedure  by  which  the  legislature  passed  the  railroad 
commission  act  is  now  practically  a  settled  policy.  A 
committee  is  granted  plenty  of  time  and  expert  help  if  it 
will  produce  results,  and  the  legislature  is  apparently 
willing  to  prolong  the  session  to  any  length  in  order  that 
it  may  do  its  work  thoroughly  and  well. 


THE   REGULATION   OF   BUSINESS  41 

The  act  covers  complete  regulation,  both  as  to  rates 
and  service,  not  only  of  railroads  but  of  all  correlated 
organizations,  such  as  refrigerator  lines,  sleeping  cars, 
transportation  and  despatch  companies  of  all  kinds,  as 
well  as  equipment,  regulation  of  passes,  mileage  books, 
sidings,  switching  and  terminals;  in  short,  the  whole 
railroad  business.  The  simplicity  of  its  procedure  is 
worthy  of  note.  Senator  W.  H.  Hatton  said  before  a 
committee  at  the  time  of  its  formulation,  "I  want  this 
procedure  so  simple  that  a  man  can  write  his  complaint 
on  the  back  of  a  postal  card,  and  if  it  is  a  just  one,  the 
state  will  take  it  up  for  him." 

After  all,  for  what  purpose  was  the  whole  thing  con- 
structed but  that  there  might  be  plain  justice?  Re- 
versals, demurrers,  rules,  appeals,  errors  —  the  whole 
troop  which  had  clouded  the  reason  of  judges  and 
added  to  the  squabbles  and  fees  of  lawyers  —  were  ex- 
cluded :  — 

Said  Senator  Hatton :  "  At  a  hearing  before  the  commission 
both  the  complainant  and  the  corporation  shall  be  given  full  op- 
portunity to  offer  testimony  of  every  kind  relating  to  the  matter 
at  issue. 

"  After  any  such  hearing,  if  the  commission  shall  find  the  rate 
complained  of  to  be  unreasonable,  immediate  relief  shall  be  given 
and  the  commission  shall  fix  a  reasonable  rate  to  be  substituted 
for  the  rate  found  to  be  unreasonable.  The  new  rate  must  be 
submitted  to  and  observed  until  passed  on  by  the  courts  and  there- 
after unless  it  shall  be  declared  by  the  court  to  be  unlawful,  as 


42  THE   WISCONSIN   IDEA 

the  rate  made  by  the  corporation  was  submitted  to  and  observed 
until  it  was  declared  by  the  commission  to  be  unreasonable. 

"  It  would  be  an  injustice  to  the  complainant  as  well  as  others 
who  are  required  to  pay  the  unreasonable  rate  to  allow  the  matter  * 
to  be  taken  to  the  courts  upon  appeal  to  be  tried  de  novo  and  allow 
the  old  rate,  which  has  been  declared  to  be  unreasonable,  to  remain 
in  force,  pending  the  judicial  determination. 

"  To  try  the  case  anew  in  the  courts,  the  old  rate  remaining  in 
force  meanwhile,  and  keep  the  complaint  entangled  in  litigation, 
would  not  only  be  unjust  to  him,  but  would  delay  the  equitable 
adjustment  of  rates  by  deterring  others  from  making  complaint, 
for  the  majority  will  submit  to  wrongs  rather  than  engage  in 
lengthy  litigation  with  wealthy  corporations. 

"  The  complainant  having  won  his  case  before  the  commission, 
should  be  relieved  from  further  litigation  and  thereafter  the  state 
must  defend  the  acts  of  the  commission,  for  it  is  a  matter  of  public 
concern.  Therefore,  let  any  party  in  interest  who  is  dissatisfied 
with  any  order  of  the  commission  bring  an  action  in  any  court  of 
competent  jurisdiction  against  the  commission  as  defendant  to  set 
aside  any  order  made  by  it,  fixing  any  rate,  on  the  ground  that  the 
rate  made  by  the  commission  is  unlawful. 

"  In  trials  before  the  courts,  if  there  is  offered  any  new  mate- 
rial evidence  or  any  different  evidence  than  that  offered  at  the 
hearing  before  the  commission,  the  court  shall  stay  its  proceedings 
for  fifteen  days  and  remand  the  case  to  the  commission  for  rehear- 
ing. This  procedure  prevents  the  withholding  of  material  evidence 
at  the  hearing  before  the  commission  for  the  purpose  of  introducing 
it  at  the  court  trial,  thereby  securing  a  reversal  of  the  order  and 
thus  discrediting  the  commission,  and  it  compels  the  submission 
of  all  testimony  to  the  commission  for  consideration  before  its  final 
action.  At  the  hearing  before  the  commission  the  question  passed 


THE  REGULATION   OF   BUSINESS  43 

on  is  the  rate  made  by  the  utility  corporation,  and  the  burden  of 
proof  is  then  upon  the  complainant,  he  being  the  plaintiff,  to  show 
by  preponderance  of  evidence  that  the  rate  complained  of  is  un- 
reasonable ;  if  he  succeeds  in  so  doing,  then  in  a  court  trial,  in  an 
action  brought  by  the  utility  corporation,  the  question  will  be  on 
the  rate  made  by  the  commission  and  the  burden  of  proof  will  then 
rest  upon  the  utility  corporation,  it  being  the  plaintiff,  to  show 
by  a  preponderance  of  evidence  that  the  rate  made  by  the  com- 
mission is  unlawful." 

The  following  is  that  section  of  the  law  relating  to 
complaints :  — 

"  Complaints  and  investigations.  Sec.  1797-12.  Upon  com- 
plaint of  any  person,  firm,  corporation  or  association,  or  of  any 
mercantile,  agricultural,  or  manufacturing  society,  or  of  any  body 
politic  or  municipal  organization,  that  any  of  the  rates,  fares, 
charges,  or  classifications,  or  any  joint  rate  or  rates  are  in  any  respect 
unreasonable  or  unjustly  discriminatory,  or  that  any  regulation  or 
practice  whatsoever  affecting  the  transportation  of  persons  or 
property,  or  any  service  in  connection  therewith,  are  in  any  respect 
unreasonable  or  unjustly  discriminatory,  or  that  any  service  is  in- 
adequate, the  commission  may  notify  the  railroad  complained  of 
that  complaint  has  been  made,  and  ten  days  after  such  notice  has 
been  given,  the  commission  may  proceed  to  investigate  the  same 
as  hereinafter  provided.  Before  proceeding  to  make  such  investi- 
gation, the  commission  shall  give  the  railroad  and  the  complain- 
ant ten  days'  notice  of  the  time  and  place  when  and  where  such 
matters  will  be  considered  and  determined,  and  said  parties  shall 
be  entitled  to  be  heard  and  shall  have  process  to  enforce  the  at- 
tendance of  witnesses.  If  upon  such  investigation  the  rate  or 
rates,  fares,  charges  or  classifications,  or  any  joint  rate  or  rates, 


44  THE   WISCONSIN   IDEA 

or  any  regulation,  practice  or  service  complained  of,  shall  be  found 
to  be  unreasonable  or  unjustly  discriminatory,  or  the  service  shall 
be  found  to  be  inadequate,  the  commission  shall  have  power  to  fix 
and  order  substituted  therefor,  such  rate  or  rates,  fares,  charges  or 
classification,  as  it  shall  have  determined  to  be  just  and  reasonable 
and  which  shall  be  charged,  imposed,  and  followed  in  the  future, 
and  shall  also  have  power  to  make  such  orders,  respecting  such 
regulation,  practice  or  service  as  it  shall  have  determined  to  be 
reasonable  and  which  shall  be  observed  and  followed  in  the  future. 
"  a.  The  commission  may,  when  complaint  is  made  of  more  than 
one  rate  or  charge,  order  separate  hearings  thereon,  and  may  con- 
sider and  determine  the  several  matters  complained  of  separately, 
and  at  such  times  as  it  may  prescribe.  No  complaint  shall  at  any 
time  be  dismissed  because  of  the  absence  of  damage  to  the  com- 
plainant." 

The  following  is  the  simple  language  in  which  the 
great  power  to  fix  rates  is  couched : — 

"  Commission  to  fix  rates  and  regulations:  procedure.  Sec.  1797- 
14.  Whenever,  upon  an  investigation  made  under  the  provisions 
of  this  act,  the  commission  shall  find  any  existing  rate  or  rates, 
fares,  charges,  or  classifications,  or  any  joint  rate  or  rates,  or  any 
regulation  or  practice  whatsoever  affecting  the  transportation  of 
persons  or  property,  or  any  service  in  connection  therewith,  are 
unreasonable  or  unjustly  discriminatory,  or  any  service  is  inade- 
quate, it  shall  determine  and  by  order  fix  a  reasonable  rate,  fare, 
charge,  classification  or  joint  rate  to  be  imposed,  observed,  and 
followed  in  the  future  in  lieu  of  that  found  to  be  unreasonable  or 
unjustly  discriminatory,  and  it  shall  determine  and  by  order  fix 
a  reasonable  regulation,  practice,  or  service,  to  be  imposed,  ob- 
served, and  followed  in  the  future,  in  lieu  of  that  found  to  be  un- 


THE   REGULATION   OF   BUSINESS  45 

reasonable  or  unjustly  discriminatory,  or  inadequate,  as  the  case 
may  be,  and  it  shall  cause  a  certified  copy  of  each  such  order  to  be 
delivered  to  an  officer  or  station  agent  of  the  railroad  affected 
thereby,  which  order  shall  of  its  own  force  take  effect  and  become 
operative  twenty  days  after  the  service  thereof." 

The  authors  of  the  bill  were  exceedingly  careful  to 
stay  within  the  bounds  which  hedge  about  the  delegation 
of  legislation.  All  Wisconsin  legislation  of  this  kind  is 
based  upon  the  simple  and  yet  effective  device  which 
may  be  paraphrased  as  follows :  — 

1.  Rates  shall  be  reasonable. 

2.  Our  servant,  the  commission,  shall  ascertain'whether 
they  are  or  are  not.     If  they  are  not,  they  shall  be 
made  so. 

In  other  words,  the  plan  carefully  allows  the  legis- 
lature to  make  the  law;  the  commission  does  nothing 
but  administer  the  wish  of  the  masters,  —  the  legisla- 
ture. The  commission  does  not  attempt  in  any  way  to 
legislate. 

An  understanding  of  certain  expedients  and  devices 
used  in  this  law  will  lead  to  a  clearer  view  of  the  prin- 
ciples underlying  the  greater  part  perhaps  of  the  legisla- 
tion described  in  what  follows. 

Like  the  railroad  commission  all  commissions  are 
practically  appointive.  In  dealing  with  complex  eco- 
nomic subjects  the  legislature  lays  down  general  prin- 
ciples —  determines  the  general  policy  and  turns  over  to 


46  THE   WISCONSIN  IDEA 

appointive  commissioners  the  responsibility  for  the  ad- 
ministration of  these  principles*  "''The  appointive  method 
is  used  because  it  has  been  felt  that  it  is  just  as  ridicu- 
lous to  elect  a  railroad  commission  as  it  would  be  to 
elect,  on  a  state-wide  ballot,  a  professor  of  comparative 
philology  at  the  university. 

The  other  device  that  is  used,  when  it  is  found  neces- 
sary to  control  an  economic  factor  affected  by  a  public 
interest,  is  public  bookkeeping.  This  may  take  the 
form  of  accounting,  valuation,  etc.,  but  the  assumption  is 
that  if  the  state  is  a  partner,  it  must  know  all  the  facts. 

The  third  great  expedient  is  reliance  on  the  trained 
expert  or,  at  least,  the  proper  recognition  of  the  fact 
that  the  work  should  be  carried  on  by  men  who  [have 
acquired  ability  either  by  training  or  by  experience. 

The  fourth  expedient  is  little  understood,  and  yet 
is  one  of  the  most  powerful  factors,  i.e.  the  continuing 
appropriation.  The  commissions  can  all  be  controlled 
by  the  majority  of  the  legislature,  but  are  not  at  the 
mercy  of  every  whim  of  the  minority. 

Running  all  the  way  through  the  regulative  legislation 
is  the  same  idea  —  the  welfare  of  the  statejs  the  welfare 
of  the  individual.  Real  rights,  not  theoretical  ones, 
must  be  guaranteed  the  individual.  The  position  of 
the  strong  and  the  weak  must  be  equalized  by  a  powerful 
state  intervention,  if  necessary  to  the  attainment  of 
quick  and  certain  justice. 


THE   REGULATION   OF   BUSINESS  47 

The  state  is  always  an  interested  party.  It  means 
merely  that  when  a  man  is  weak  he  has  a  big  brother 
to  whom  he  may  turn,  who  judges  his  case  and  says  to 
the  strong  one,  "I  am  here  not  only  as  a  judge,  but  also 
to  protect  the  weak  against  the  strong.  The  burden  of 
proof  is  upon  you  to  show  that  my  rulings  are  unjust. 
This  man  cannot  make  any  progress  toward  real  justice 
in  the  face  of  all  the  difficulties  which  beset  him."  And 
it  is  not  always  a  single  individual  who  is  too  weak. 
As  Professor  Ely  says :  — 

"  How  helpless  against  a  combination  of  railways  is  the  city 
of  twenty-five  thousand  inhabitants  when  struggling  to  do  such  a 
seemingly  small  and  entirely  right  thing  as  to  provide  gates  at  grade 
railway  crossings.  The  writer  has  one  case  in  mind.  The  very  mod- 
est efforts  of  the  city  were  met  with  the  threat  that  the  railway  shops 
would  be  removed  to  a  village  some  thirty  miles  distant  and  in  an 
adjoining  state.  Even  the  city  of  Chicago  has  had  a  mighty  strug- 
gle, continuing  for  years,  in  its  efforts  to  protect  life  at  railway  cross- 
ings. At  one  time  it  was  proposed  by  the  railways  to  leave  Chicago 
and  build  another  city  in  adjacent  territory  to  escape  what  was 
regarded  by  the  railways  as  oppression  on  the  part  of  the  city." 

The  following  diagram  will  illustrate  the  one  great 
central  device  which  has  been  used  over  and  over  again. 
In  Diagram  I  is  shown  g,  h,  i,  j,  k,  /,  m  —  small  shippers. 
Each  man  has  to  take  up  individually  his  particular  case 
against  "A"  -the  railroad,  a  corporation  composed  of 
b,  c,  d,  e  and/,  —  that  is,  a  cooperative,  collective  agency 
—  an  organized  body.  The  small  shippers  are  obviously, 


THE   WISCONSIN  IDEA 


from  an  economic  standpoint,  at  a  disadvantage  against 
this  organization.  They  also  have  great  difficulty  in 
trying  to  prove  their  case  before  the  courts  when  they 
have  not  even  publicity  as  to  the  facts  to  help  them. 


iD- 
JO- 
KD- 


RAILROAD 


DIAGRAM  I 

Diagram  II  shows  the  establishment  of  "Z"  -the 
commission.  Here  we  have  a  cooperative,  organized 
body  to  deal  with  the  cooperative  body  "A."  After  all, 
the  device  is  similar  to  that  used  by  labor  unions  in  this 
country  and  by  the  great  cooperative  farmers'  move- 
ments in  Europe  and  Australia. 


z 

COMMISSION 

A 
RAILROAD 

DIAGRAM  II 


Now  let  us  consider  Diagram  III.  If  it  is  right  that 
8)  h>  i>  jy  k>  ^  and  m  should  have  somebody  to  go  to, 
if  it  is  right  that  "M,"  who  as  a  shipper  having  a  case 
relating  to  a  few  bales  of  hay,  should  have  some  means 


THE   REGULATION   OF   BUSINESS 


49 


of  getting  speedy  justice,  what  will  we  say  about  "N" 
and  "O,"  who  have  had  limbs  cut  off  through  the  care- 
lessness of  "A"?  If  we  have  given  a  remedy  to  UM' ' 
for  his  hay  or  potatoes,  should  we  not  give  some  certain 
compensation  for  "N"  and  "0"  for  their  limbs?  If 
the  principle  applies  in  one  case,  does  it  not  apply  in 
the  other?  Here  we  have  the  principle  of  the  work- 


z 

COMMISSION 

A 
RAILROAD 

.^fia^ 

DIAGRAM  HI 


men's  compensation  act,  but  suppose  there  are  others 
- p,  q,  and  r.  "P"  is  a  competitor  who  has  a  clear 
case  of  unfair  discrimination  in  interstate  trade  against 
the  steel  trust.  "Q"  is  a  man  who  has  a  patent  upon 
which  there  has  been  an  infringement  by  the  Standard 
oil  company.  "R"  is  represented  in  one  of  the  follow- 
ing cases,  which  have  been  taken  from  a  report  on  the 
investigation  of  certain  insurance  companies.  They 
may  be  found  in  the  Proceedings  of  the  National  con- 
vention of  insurance  commissioners  held  in  Milwaukee, 
August  22,  1911,  pages  20-21,  24,  47-48. 


50  THE   WISCONSIN   IDEA 

"Claim  31,805.    FRANK  HARMAN;  liability  $300. 

"Insured  was  killed  Dec.  5,  1908.  He  had  had  a 
policy  in  the  Columbus  Mutual  Benefit,  which  expired 
Dec.  yth.  A  Phcenix  Preferred  policy  was  issued  and 
paid  for  on  Nov.  28th,  it  being  understood  between  the 
insured  and  the  agent  that  the  Columbus  Mutual  Benefit 
policy  would  be  dropped.  At  the  time  of  the  insured's 
death,  the  Phcenix  Preferred's  agent  had  possession  of 
both  policies.  On  Dec.  gih  —  four  days  after  such 
death  —  such  agent  wrote  to  his  company,  asking  it  to 
send  him  an  indorsement  to  the  effect  that  the  policy 
was  not  in  force  until  the  Columbus  Mutual  Benefit's 
policy  expired.  The  company  replied,  asking  the  agent 
to  forward  the  policy  to  the  home  office.  The  qompany 
then  apparently  put  an  indorsement  on  the  policy  in 
accordance  with  the  suggestion  of  the  agent.  The 
company  was  sued  and  defended  as  per  such  indorse- 
ment —  and  won. 

"In  the  opinion  of  the  committee  this  was  not  only 
fraud  but  forgery,  and  those  responsible  therefor  should 
be  presented  to  the  criminal  authorities  for  indictment." 

"Claim  31,958.    WILLIAM  LINK  ;   liability  $300. 

"Policy  concededly  issued  and  paid  for.  Insured 
killed  in  grain  elevator,  while  performing  his  duties. 
His  widow,  who  had  possession  of  the  policy,  delivered 
it,  within  two  days  after  the  accident,  to  the  company's 


THE   REGULATION   OF   BUSINESS  51 

district  manager.  The  latter  then  forwarded  the  policy 
to  the  company  with  a  brief  memorandum  on  a  slip  of 
paper,  saying:  — 

" '  Will  write  you  to-morrow  in  regard  to  this.  I  don't 
want  to  keep  it  in  this  office.' 

"The  next  day  the  company  replied :  — 
"You  were  wise  in  not  retaining  anything  in  your 
office/ 

"And,  later  reprimands  its  manager  for  sending  in  a 
preliminary  proof,  suggesting  that  'it  may  cause  us 
trouble.' 

"A  month  later,  when  written  to  by  the  attorney  for 
the  claimant,  the  company  states  that  it  is  unable  to 
find  such  a  claim  and  imagines  that  the  widow  has 
made  a  mistake  in  the  name  of  the  company  and  re- 
peatedly thereafter  denies  that  there  is  any  record  of 
such  a  policy.  As  a  result  of  this  flagrant  larceny  of 
the  claimant's  evidence,  the  company  forces  a  com- 
promise of  $150,  though  informed  that  the  claimant  is 
a  woman  in  destitute  circumstances,  with  two  small 
children,  one  of  them  but  four  months  old." 

"Policy  89,248.    MIKE  KORAN;  liability  $30Q. 

"Insured  died  from  fracture  of  the  skull,  March  29, 
1907.  The  company,  using  first  one  excuse  and  then 
another,  delayed  in  every  possible  way  settlement  of 
claim,  though  its  agent  writes,  on  April  18,  1907,  that 


52  THE   WISCONSIN   IDEA 

there  is  not  a  shred  of  evidence  that  the  policy  was 
delinquent.  The  beneficiary  —  who  could  not  speak 
English  —  was  thus  forced  to  engage  an  attorney.  So 
far  as  the  records  show,  these  dilatory  tactics  were 
successful  —  and  no  payment  was  made." 

" Claim  354,219.    ANTON  LUND,  liability  $5000. 

"  Policy  covered  double  indemnity.  Insured  held  a 
traveller's  ticket  policy  and  was  killed  in  a  railroad  wreck. 
Company  had  no  defence,  save  late  notice,  it  seems  to 
have  been  asserted  because  administrator  —  who  was 
prevented  from  securing  possession  of  the  ticket  policy 
by  the  coroner  who  took  charge  of  the  insured's  body  - 
did  not  make  timely  proof.  As  soon  as  administrator 
secured  such  policy  he  made  proof.  Beneficiary  later 
sued  company.  Company  then  adopted  dilatory  tactics 
in  the  courts,  its  legal  department  writing  the  local 
attorney,  as  follows  :  — 

" '  As  I  have  repeatedly  advised  you,  the  company  does  not  de- 
sire that  this  case  should  ever  come  to  trial,  and  our  only  intent 
is  to  adopt  dilatory  tactics,  file  demurrers,  etc.,  and  thus  force  an 
equitable  settlement.' 

And  later:  — 

" '  If  you  find  that  you  cannot  dispose  of  the  suit  within  this 
limit  ($2,500.00)  I  think  we  had  better  stand  <pat  awhile  longer, 
putting  the  trial  off  as  long  as  we  possibly  can,  and  adopting  all 
possible  dilatory  tactics.  ...  To  be  absolutely  frank,  rather 
than  let  this  suit  go  to  trial,  I  would  advise  the  company  to  pay  on 


THE   REGULATION   OF   BUSINESS  53 

the  eve  of  the  trial  considerable  more  than  the  maximum  men- 
tioned.' 

"The  local  attorney  finally  succeeded  in  making  a 
compromise  settlement  for  $2500,  the  face  of  the  policy, 
thus  evading  the  double  indemnity." 

The  horrible  thing  about  all  this  is  that  it  is  so  uni- 
versal. How  can  we  make  good  citizens  out  of  the 
fellow-workers  of  Anton  Lund  and  Mike  Koran  with 
such  an  example  before  them?  Is  it  any  wonder  that 
the  "Boss"  is  triumphant  in  American  politics?  Why, 
the  Boss  is  absolutely  needed  in  a  system  of  this  kind ! 
The  Boss  can  get  justice;  he  has  power  and  sympathy 
and  can  strengthen  his  hold  with  every  appeal  for  his 
aid. 

Read  the  following  from  an  article  in  Everybody's 
Magazine  —  true,  every  word  of  it. 

"'Somebody's  got  to  get  hurt,  and  that's  all  there  is  to  it.  But 
there  is  one  thing  that  makes  the  boys  mad.'  The  speaker  was 
a  lean,  quiet,  shrewd-looking  Scotchman  of  middle  age,  proprietor 
of  a  tiny  lunch  room  where  dinner  is  served  for  a  quarter.  He 
leaned  over  the  desk,  on  his  right  elbow. 

" '  Who  ought  to  pay  the  damage  ? '  With  his  thumb  he  pointed 
to  the  limp  sleeve  that  hung  in  place  of  his  left  arm.  '  There  is 
a  law  for  damages,'  he  went  on,  'and  there's  plenty  of  lawyers 
around  the  docks  who  know  just  how  to  handle  it.  These  lawyers 
are  employed  by  the  Ship  Company,  or  by  some  insurance  firm 
that  backs  the  Company,  I  don't  know  exactly  which.  All  I  do 
know  is  that  for  a  good  many  years  while  I  was  at  work  as  a  docker 


54  THE   WISCONSIN   IDEA 

I  watched  how  they  did  it.  And  havin'  a  feeling,  as  my  good  old 
mither  in  Scotland  would  put  it,  that  I  was  foreordained  to  get 
smashed  —  I  began  to  kind  of  study  this  damage  law  by  myself, 
and  decided  just  about  what  I'd  do  if  the  time  ever  came. 

" '  It  did.  One  afternoon  in  the  bottom  of  a  ship  my  arm  got 
hit  from  behind  by  the  end  of  a  big  mahogany  log.'  He  paused 
for  a  moment,  then  he  added  slowly,  '  When  I  come  to,  down  on 
the  dock,  I  jest  kept  my  eyes  shut  and  shouted,  "  I  won't  sign  any- 
thing ! "  Being  somewhat  frivolous-minded  from  the  arm,  which 
was  pounding  inside  like  twenty  pile-drivers,  I  made  the  same  re- 
mark to  the  ambulance  man,  and  again  to  the  hospital  nurse  when 
I  come  out  of  the  ether  that  night.  Then  I  got  almighty  sick. 
But  when  the  lawyer  arrived  the  next  day,  my  legal  mind  was 
ready. 

"  '  How.much  for  my  arm  ? '  I  asked.  That  started  him  talk- 
ing and  showing  his  long  lawyer  paper.  At  last  he  pulled  out  fifty 
dollars,  and  said  they  were  mine  if  I'd  sign  and  '  have  no  more 
trouble  at  all/ 

" ' "  No  more  trouble  at  all,"  I  said,  speaking  sad,  "  with  a  family, 
and  no  arm  to  work  with,  and  fifty  dollars  to  live  on?  " 

" '  Then,  as  he  looked  down  on  me  in  the  bed,  his  face  got  lighted 
by  hope,  faith,  and  charity ;  he  told  me  how  sorry  he  was.  But 
he  said  I'd  been  careless  —  in  the  eye  of  the  law. 

"  '  "  This  eye  of  the  law,"  I  remarked,  "  is  a  just  eye  —  for  me 
and  the  Ship  Trust  alike." 

"  '  "  Tries  to  be,"  he  said. 

"  '  "  It's  a  kind  eye  for  my  wife  and  kids,"  I  remarked. 

"  '  "  Tries  to  be,"  he  said,  looking  sorry. 

"  '  "  And  if  I  don't  sign,  and  sue  you  in  court  for  five  thousand, 
it'll  be  a  slow  eye." 

"  '  "  Tries  to  be,"  he  began,  —  but  he  grinned.  "  Your  case 
wouldn't  even  be  called  for  a  year,"  he  said,  looking  sorry. 


THE  REGULATION   OF  BUSINESS  55 

"  '  I  sat  half  up  on  my  elbow. 

"  '  "  And  if  I  go  to  court  with  every  Tammany  chief  of  the 
district  —  still  a  slow  eye,"  I  remarked. 

"  '  The  lawyer  jumped,  and  his  face  got  queer.  He  took  the 
addresses  I  gave  "him,  and  went  to  see  my  friends.  He  came  back 
the  next  day,  and  grinned  kind  of  sheepish,  and  offered  a  thousand. 
I  signed.' 

"  Talk  with  hundreds  of  men  on  the  docks,  and  you  will  find 
that  the  Scotchman's  opinion,  rightly  or  wrongly,  is  the  opinion 
of  all.  But  few  are  as  shrewd  as  he.  Nine  out  of  ten  get  nothing 
at  all,  or  else  settle  at  once  for  some  beggarly  sum.  And  so,  having 
grown  hopeless  of  this  '  just  eye/  they  long  ago  started  a  scheme 
of  their  own." 

Good  soil  for  the  anarchist  and  the  firebrand,  is  it 
not,  Mr.  Reader  ? 

Legal  aid  bureaus  have  been  established  in  cities,  but 
on  the  whole  comparatively  feeble  attempts  have  been 
made  in  Wisconsin  or  any  other  place  to  carry  out  any 
definite  plan  to  right  some  of  these  wrongs.  Does  it 
show  that  we  need  some  other  sort  of  machinery  to-day 
to  meet  economic  conditions?  Does  it  show  a  break- 
down of  common  justice  ?  Does  it  show  that  we  should 
have  some  cooperation  on  the  part  of  the  judges  in  clear- 
ing up  the  procedure  and  the  chicanery  which  has  sur- 
rounded law?  Is  it  not  a  serious  matter  that  these 
crude  devices  above  pictured  have  had  to  be  used  be- 
cause justice  could  not  be  obtained  and  that,  because 
wealth  and  strength  did  have  in  fact  such  a  place  in 


56  THE   WISCONSIN   IDEA 

our  courts,  such  legislative  devices  were  necessary  in 
order  to  carry  out  in  these  modern  days  that  justice 
which  was  guaranteed  in  our  constitution  ? 

It  may  suggest  to  the  reader  that  not  only  is  our  legis- 
lative machinery,  which  has  been  so  widely  criticised  in 
the  past  at  fault,  but  that  there  may  be  other  deep- 
seated  faults  which  are  not  being  corrected  as  rapidly 
as  those  committed  by  the  legislature,  and  that  the 
remedy  in  America  does  not  merely  consist  of  a  few 
laws  restricting  corporations  but  that  it  must  go  deep 
down  in  the  education  of  our  lawyers,  in  the  education 
of  our  people  as  to  their  rights,  and  in  the  changes  in 
the  forms  of  our  government  which  will  actually  meet 
the  economic  stress  of  to-day. 

It  is  a  common  thing  in  the  legislative  halls  for  some 
hoary  head,  learned  in  the  law,  to  recite  the  old  phrase 
"you  cannot  make  men  good  by  law."  That  may  be 
true,  but  you  can  make  men  comparatively  better  —  at 
least  good  enough  to  respect  other  men's  rights.  The 
device  shown  in  the  diagrams  is  as  old  as  history.  The 
state  itself  is  based  upon  it.  Without  it  civilization 
could  never  have  existed.  To  illustrate,  imagine  a 
group  of  savages  sitting  in  a  circle  feasting;  the  gaiety 
is  suddenly  interrupted  by  a  huge  savage  who  rushes 
into  the  circle,  seizes  the  food  and  runs  away  with  it. 
We  can  imagine  our  savages  sitting  in  a  circle,  hungry 
and  mourning  over  the  loss  of  the  food.  One  appeals 


THE   REGULATION   OF   BUSINESS  57 

to  the  other  to  rescue  the  food.  One  braver  than  the 
rest  strives  to  wrest  it  from  the  thief  —  and  is  killed. 
This  occurs  perhaps  many  times  until  some  genius 
appeals  to  the  desperate  crowd,  "Let's  all  go."  They 
do  go  and  pound  the  marauder  over  the  head.  Then  it 
is  that  the  law  is  made;  that  the  rights  of  the  weak 
begin  to  be  respected  by  the  powerful;  that  what  an 
individual  cannot  do  the  collective  strength  of  many 
can  do  —  and  incidentally  in  the  future  the  chief  offenders 
will  be  better  men. 

But,  says  the  doubter,  will  not  the  time  of  this  com- 
mission be  inonopolized  with  these  cases?  Will  not 
Tom,  Dick  and  Harry,  every  crank  who  has  some 
imaginary  injury,  crowd  this  tribunal  until  it  will  be 
unable  to  do  quick  justice  ?  This  is  not  true,  because 
when  there  is  power  enough,  certainty  enough  and 
punishment  enough  the  offending  party  will  be  glad  to 
reach  a  settlement  of  some  sort.  If  he  has  done  wrong, 
the  publicity  given  to  that  wrong  will  excite  public 
opinion  and  the  great  corporations  do  not  care  for  more 
of  this  excitement  than  is  necessary.  Crank  cases  are 
easily  disposed  of,  and  the  case  of  the  really  injured  is 
generally  settled  before  it  reaches  the  commission.  If 
courts  are  complaining  of  being  overburdened,  they 
should  take  " judicial  notice"  of  the  above  results  of 
strong,  clear,  quick  action.  It  is  or  should  be  one  of 
the  purposes  of  all  law  to  diminish  litigation  and  to 


58  THE   WISCONSIN   IDEA 

increase  the  number  of  cases  settled  amicably  out  of  court 
by  arbitration  or  by  other  peaceful  adjustment.  If  the 
strong  did  not  see  so  many  loopholes  in  justice  to-day, 
so  many  chances  to  wear  out  the  weak  by  lengthy  liti- 
gation, so  many  opportunities  for  appeals,  reversals 
and  all  the  long  list  of  legal  barriers  built  up  against 
the  "Man  who  has  not/'  there  would  not  be  so  many 
cases  of  this  kind  in  court,  the  calendars  would  not  be 
crowded — and  incidentally,  there  would  be  more  confi- 
dence in  justice  and  the  servants  of  the  law,  and  per- 
haps less  anarchy. 


PUBLIC  UTILITIES 

The  public  utility  act  was  the  second  important  law 
based  upon  the  principles  established  in  the  railroad 
commission  act. 

It  was  a  general  law,  chapter  499,  laws  of  1907,  regu- 
lating heat,  light  and  water  works  and  telephone  com- 
panies. The  street  railway  law,  chapter  578  of  the 
laws  of  1907,  provided  for  indeterminate  permits,  while 
street  railways  and  telegraph  companies  were  placed 
under  the  supervision  of  the  railroad  commission  by 
chapter  582,  laws  of  1907. 

The  public  utilities  are  now  completely  governed  in 
Wisconsin  by  the  railroad  commission,  an  appointive 
board  of  three  with  practically  unlimited  power  to  hire 


THE   REGULATION   OF   BUSINESS  59 

experts.  Chapter  593  of  the  laws  of  1911  provided  for 
further  regulation  of  stocks  and  bonds,  while  physical 
connection  of  telephones  was  required  under  chapter  546 
of  the  laws  of  1911.  The  same  policy  pursued  in  the 
railroad  commission  law  is  carried  out  in  the  public 
utility  act.  Physical  valuation  is  the  foundation  of  it. 
It  will  be  seen  at  once  that  if  we  have  physical  valua- 
tion we  are  getting  at  the  basis  of  all  regulation.  The 
intangible  assets  can  be  separated  and  the  same  reasons 
which  justify  its  use  by  the  railroad  commission  justify 
its  application  to  all  public  utilities.  There  is  no  feature 
in  this  bill  more  questioned  than  the  manner  of  arriving 
at  the  valuation,  for  if  the  rates  are  to  be  based  on 
value,  what  are  its  elements?  Makers  of  the  law  had 
no  greater  difficulty  than  in  trying  to  solve  this  ques- 
tion. "  Going  value/'  "  Property  used  and  useful," 
"Cost  of  the  service"  are  technical  and  difficult  to 
define.  It  will  be  a  long  time  before  all  the  points  in 
this  matter  can  be  worked  out  satisfactorily  to  the 
accountants  and  the  public.  How  fair  the  commission 
have  tried  to  be  is  seen  by  the  following  excerpt  from 
an  address  by  Chairman  John  H.  Roemer :  — 

"  There  is  a  tendency  on  the  part  of  some  to  regard  the  repro- 
ductive cost  less  depreciation  as  the  only  proper  basis  of  capitaliza- 
tion upon  which  returns  should  be  computed.  This,  in  most  in- 
stances, would  be  so  unfair  that  it  could  probably  not  be  sustained 
if  assailed  upon  constitutional  grounds.  Old  enterprises,  which 


60  THE   WISCONSIN  IDEA 

have  yielded  large  profits  for  many  years,  could  not  justly  com- 
plain if  their  returns  should  be  based  upon  the  present  fair  value 
of  their  physical  structure,  but  when  the  losses  incurred  in  the 
developing  period  of  the  business  of  any  public  utility  have  not 
been  requited,  it  would  be  doing  grave  injustice  to  the  investors 
in  such  concern  to  so  limit  the  returns  upon  the  capital  actually 
and  prudently  sunk  in  the  enterprise  under  economical  adminis- 
tration. We  have  taken  the  position,  in  certain  cases,  that  the 
losses  necessarily  incurred  in  building  up  the  business  during  its 
formative  period  are  a  legitimate  charge  against  the  public  and 
should  in  such  instances  be  considered  in  fixing  rates.  It  is  my 
personal  opinion  that  unearned  depreciation,  unearned  interest  on 
the  investment,  and  any  operating  charges  that  have  not  been  paid 
out  of  operating  revenues,  from  the  inception  of  the  enterprise 
until  it  reaches  the  point  where  the  operating  revenues  are  sufficient 
to  pay  fair  returns  on  the  legitimate  investment,  are  generally  as 
much  a  part  of  the  value  of  the  active  property  as  interest,  taxes, 
insurance,  and  other  fixed  charges  incurred  during  the  period  of  con- 
struction. The  former  may  often  be  computed  accurately  from 
the  records  available  and  constitute  the  cost  of  establishing  the 
business  on  a  profitable  basis.  It  is,  in  fact,  the  cost  incurred  in 
converting  the  property  from  a  static  state  to  a  dynamic  state,  and 
forms  the  monetary  measure  of  going  value.  Whether  the  full 
amount  of  such  losses  should  be  allowed  in  any  given  case,  depends 
upon  all  the  facts  and  circumstances  surrounding  the  same." 

?The  law  provides  for  a  system  of  uniform  accounting, 
especially  for  construction  and  depreciation  accounts. 
It  is  generally  thought  by  the  men  who  drafted  this 
bill  that  these  as  well  as  publicity  features  were  neces- 
sary protections  to  the  public  against  the  commission. 


THE  REGULATION   OF   BUSINESS  6 1 

Then,  again,  the  municipalities  indirectly  will  have  tech- 
nical help  given  to  them,  which  otherwise  they  could 
not  afford.  A  permanent  staff  of  experts  is  thus  pro- 
vided so  that  the  municipality  can  tell  upon  what  basis 
the  commission  places  its  rates.  The  law  also  provides 
for  schemes  which  will  be  stimulants  to  corporations, 
such  as  sliding  scales  and  other  devices  of  this  kind, 
merely,  however,  allowing  the  commission  to  pass  upon 
these  scales.  The  depreciation  accounting  was  received 
with  open  arms  by  the  managers  of  the  companies.  The 
greedy  stockholders  in  a  company  would  press  the 
managers  for  a  higher  rate  of  dividend,  who  were  thus 
often  between  the  devil  and  the  deep  sea.  In  many 
cases  if  they  gave  this  higher  dividend  they  would  have 
to  do  so  from  the  depreciation  fund  of  the  property, 
whereas,  if  they  did  not  give  it,  they  were  often  threatened 
with  dismissal.  In  this  manner  both  the  avaricious 
stockholder  and  the  crooked  politician  who  would  make 
the  same  demands  of  municipal  enterprises  have  been 
regulated  by  this  law.  The  commission  has  just  de- 
manded that  the  city  of  Milwaukee  set  aside  $35,000 
for  a  depreciation  fund  for  its  municipally  owned  water 
works. 

One  of  the  most  debatable  parts  of  the  law  is  the 
indeterminate  permit.  The  men  in  favor  of  this  bill 
had  a  hard  struggle  to  include  this  feature.  The  fixed 
period  had  become  so  popular  and  there  had  been  so 


62  THE   WISCONSIN   IDEA 

many  battles  over  it  that  it  was  very  hard  to  convince 
the  legislature  that,  if  the  stocks  and  bonds  were  ter- 
minated at  a  certain  point,  the  consumers  would  lose  in 
the  end  by  the  term  franchise,  as  the  consumers  would 
have  to  provide  for  an  amortization  fund.  Under  the 
Wisconsin  law  corporations  were  permitted  to  surrender 
their  franchises  and  receive  an  indeterminate  permit. 
It  was  felt  by  the  authors  of  this  program  that  with 
entire  publicity  and  power  to  fix  the  service  conditions, 
this  was  a  safe  basis  upon  which  to  go  and  would  be  the 
cheapest  in  the  long  run. 

Judge  Marshall  of  the  Wisconsin  supreme  court  in  a 
case  involving  the  validity  of  this  part  of  the  act  says :  — 

"  The  confusion  created  during  the  years  preceding  the  public 
utility  law  of  1907  by  granting  franchises  in  several  different  ways, 
—  some  directly  by  the  state,  some  by  cities  as  state  agencies,  some 
by  the  state  in  the  main  but  with  power  to  the  various  municipal- 
ities as  state  agencies  to  add  supplementary  features,  fitting  par- 
ticular situations,  some  by  the  state  without  regard  to  local  police 
regulations,  and  some  likewise  having  such  regard,  either  expressly 
or  by  necessary  implication,  some  having  contractual  features 
creating  doubt  in  regard  to  their  constitutional  status,  and  some 
having  such  features  but  without  doubtful  character,  many  of 
such  matters  being,  in  the  ultimate,  more  or  less  detrimental  to 
consumers,  whether  public  or  private,  and  proprietors  as  well,  — 
in  the  whole,  created  a  perplexing  situation  in  respect  to  har- 
monious administration.  The  legislature  sought  to  deal  efficiently 
with  this  mixed  situation,  the  growth  of  years,  by  taking  over 
existing  franchises  with  the  consent  of  owners,  compensating  them 


THE  REGULATION   OF  BUSINESS  63 

for  cooperating  to  that  end  by  conferring  in  each  case  of  surrender 
a  new  franchise  to  do  the  things  privileged  under  the  old  one  with 
conditions  referable  only  to  the  law  itself,  and  so  providing  that 
subsequent  original  franchises  conferred  in  whole  or  in  part  through 
state  agencies  would  be  likewise  referable.  The  traffic  thus  sanc- 
tioned and  invited  as  to  existing  franchises  has  been  considerable 
and,  as  said  before,  with  definite  mutual  ideas  as  to  the  status  re- 
sulting from  the  exchange.  The  property  interests  involved  have 
doubtless  been  very  great,  the  persons  directly  and  indirectly  in- 
terested large,  and  the  transactions  numerous  as  well.  Obvi- 
ously, any  construction  of  the  law  running  counter  to  the  general 
view  entertained  hi  such  transactions  should  be  avoided  if  prac- 
ticable. 

"If  we  concede,  for  the  case,  that,  in  a  reasonable  view,  the 
public  utility  law  is  ambiguous,  looking  only  at  its  words,  we  can- 
not well  so  say  in  the  light  of  the  situation  the  legislature  dealt 
with,  as  indicated,  and  the  new  condition  which  was  evidently 
desired.  It  is  evident  the  aim  was  to  displace  existing  public 
utility  franchises  of  the  nature  of  those  mentioned  in  the  act,  so 
far  as  that  could  justly  be  accomplished,  by  new  direct  grants  from 
the  state  of  a  uniform  character,  free  from  the  peculiarities  of  old 
franchises,  prejudicial  to  the  dominant  end  in  view ;  the  best  ser- 
vice practicable  at  reasonable  cost  to  consumers  in  all  cases  and  as 
near  a  uniform  rate  for  service  as  varying  circumstances  and  con- 
ditions would  permit ;  a  condition  as  near  the  ideal  probably  as 
could  be  attained. 

"  It  is  useless  to  extend  this  opinion  further  for  the  purpose  of 
picturing  the  situation  dealt  with  by  the  legislature.  The  magni- 
tude of  the  task  was  great.  Few,  if  any,  greater  have  been  dealt 
with  in  our  legislative  history.  The  result  stands  significant  as 
a  monument  to  legislative  wisdom.  That  such  a  complicated 


64  THE   WISCONSIN  IDEA 

situation  has  been  met  by  written  law  in  such  a  way  as  to  avoid 
successful  attack  up  to  this  time  on  the  validity  of  the  law  or  any 
part  of  it,  and  avoid  attack  at  all  either  upon  the  law  or  its  admin- 
istration, except  in  a  very  few  instances,  and  secure  optional  sub- 
mission by  many  owners  of  old  franchises  to  a  displacement  of 
their  privileges,  —  is  quite  a  marvel ;  reflecting  credit  upon  the 
lawmaking  power  and  the  body  charged  with  the  onerous  duty  of 
administering  the  statute,  and  challenging  judicial  attention  to 
the  importance  of  not,  by  construction,  reading  out  of  the  enact- 
ment any  meaning  not  clearly  found  there,  —  even  to  avoid  a 
seemingly  unlooked-for  disturbing  consequence  in  a  particular 
instance  now  and  then,  —  which  would  tend  to  defeat  the  object 
of  the  law.  The  words  of  the  enactment,  dealing  as  it  does  with 
vast  private  and  public  interests,  should,  if  practicable,  be  given 
a  meaning  so  definite  and  comprehensive  as  to  prevent  any  at- 
tempt to  restrict  it  or  extend  it  so  as  to  continue  or  renew  or  pro- 
mote the  detrimental  consequences  it  was  aimed  to  abolish  and 
prevent." 

The  corporations  did  not  at  once  avail  themselves  of 
the  privilege  of  exchanging  their  franchises  for  the  in- 
determinate permits,  but  by  a  law  of  1911  they  are  com- 
pelled to  do  so.  Says  Chairman  John  R.  Roemer  in  a 
recent  address:  — 

"  This  apparent  reluctance  to  make  the  change,  although  con- 
trary to  the  anticipation  of  the  legislature  which  passed  the  law, 
was  not  due  to  any  apprehension  on  the  part  of  the  managements 
that  the  indeterminate  permits  were  less  valuable  to  the  corpora- 
tions than  their  secondary  franchises,  but  rather  to  a  doubt  as 
to  the  power  of  the  corporations  to  surrender  privileges  which  had 
been  hypothecated  to  secure  outstanding  bond  issues.  Thus,  most 


THE   REGULATION   OF   BUSINESS  65 

of  the  surrenders  were  made  by  corporations  who  were  able  to 
secure  the  consent  of  the  bondholders  or  who  were  able  to  retire 
or  refund  their  bond  issues.  It  was  very  evident  that  many  years 
would  be  required  to  carry  out  the  purpose  of  the  law  respecting 
uniformity  of  franchises  throughout  the  state,  and,  hence,  the 
recent  legislature,  acting  under  the  power  reserved  in  the  consti- 
tution to  alter  or  repeal  corporate  franchises,  and  under  the  police 
power,  amended  every  franchise,  making  it  an  indeterminate  per- 
mit. So  at  present,  assuming  the  validity  of  the  act  converting 
all  franchises  into  indeterminate  permits,  there  is  uniformity  in 
franchises  throughout  the  state,  and,  in  consequence,  all  public 
utilities  are  subject  to  all  the  provisions  of  the  Utilities  Law." 

The  Wisconsin  law  comes  out  boldly  on  the  point  that 
unnecessary  competition  costs  excessively  in  the  long 
run  and  should  be  eliminated,  if  possible,  especially  if 
other  incentives  resulting  in  the  betterment  of  service 
can  be  maintained.  In  fact,  the  whole  idea  of  this  kind 
of  legislation  is  a  frank  recognition  of  monopoly.  By 
chapter  454,  laws  of  1907,  no  railroad  corporation,  which 
includes  street  railways,  may  begin  the  construction  of 
any  line  without  receiving  a  certificate  of  convenience 
and  necessity.  Right  in  line  with  the  same  policy  are 
laws  to  provide  for  the  common  use,  at  a  reasonable 
compensation,  of  facilities  such  as  poles,  conduits,  etc. 

The  municipal  ownership  law  too  has  been  strength- 
ened. By  using  the  threat  of  municipal  ownership  as  a 
club,  municipalities  may  buy  the  plants  of  the  companies 
at  a  price  fixed  by  the  commission.  As  a  general  thing, 


66  THE   WISCONSIN   IDEA 

it  was  felt  by  the  men  responsible  for  this  regulation 
that  service  was  the  first  thing  to  be  sought  and  if 
proper  service  could  be  attained  with  a  fair  return  to 
the  corporation,  that  was  all  that  was  necessary.  They 
depended  upon  publicity  and  valuation  as  clubs  to 
achieve  this  service  under  these  conditions;  there  is  no 
doubt  but  that  municipalities  have  a  hard  time  convinc- 
ing people  that  they  should  purchase  plants,  but  the 
law  is  so  arranged  that  besides  the  regulation  pursued 
by  the  commission,  there  is  constantly  hanging  over 
public  service  corporations  the  purchase  clubs  used  in 
connection  with  the  indeterminate  permit.  It  will  be 
remembered  that  municipally  owned  plants  and  private 
plants  are  under  practically  the  same  terms  of  control. 

Nothing  in  this  law  has  excited  greater  interest  nor 
greater  antagonism  than  this  very  question  of  home 
rule  and  the  relations  in  general  to  municipalities.  When 
the  public  utility  act  was  first  proposed  there  is  no  doubt 
but  that  the  public  utilities  of  the  state  thought  they 
would  gain  by  placing  in  the  hands  of  some  kind  of  a 
weak  commission,  a  power  which  would  protect  them 
from  the  localities.  They  were  constantly  in  fear  of  the 
encroachments  of  municipal  ownership  and  the  concerns 
which  were  granted  spurious  franchises  in  so-called 
competition.  The  outcry  was  great  from  the  localities 
but  the  law  was  sustained  by  public  sentiment.  The 
friends  of  the  bill  answered  that  the  small  cities  had 


THE  REGULATION   OF   BUSINESS  67 

neither  the  administrative  machinery  nor  the  technical 
means  necessary  to  discover  the  conditions  and  that  the 
centralizing  of  technical  skill  which  could  be  of  use  to 
all  was  the  only  safety  for  the  community  —  at  least  for 
the  present. 

It  is  well  to  note  here  that  the  municipality  retained 
the  right  to  compel  reasonable  extension  and  good  service 
and  to  provide  ordinances  for  that  purpose,  subject  to 
an  appeal  to  the  commission  as  to  their  unreasonableness. 

Public  Utility  in  Relation  to  Municipalities 

The  peculiarly  defenceless  position  of  the  ordinary 
small  municipality  and  the  relation  of  the  public  utility 


DIAGRAM  IV 


commission  to  the  whole  question  of  the  control  of 
public  utilities  is  illustrated  by  Diagram  IV. 


68  THE   WISCONSIN   IDEA 

Let  A  be  a  large  gas  syndicate  having  an  accounting 
system  that  shows  every  item  of  the  cost  of  the  business. 
It  has  scientific  experts,  technical  engineers  and  a  general 
concentration  of  intelligence  and  ability  and  scientific 
knowledge;  it  has  a  central  administrative  office.  It 
has  also  in  its  employ  experts  on  the  legal  side  of  the 
question,  men  who  are  accustomed  to  investigating  the 
law  in  all  matters  relating  to  this  work. 

Let  "J3"  be  a  small  town  which  has  a  gas  plant.  "B" 
complains  that  the  gas  is  of  poor  quality  or  too  costly. 
What  chance  has  "B"  in  fighting  this  great  combination 
of  science  and  legal  ability  ?  Why,  "B"  would  not  even 
know  how  to  obtain  the  first  expert;  it  would  have 
neither  offices  nor  organized  force  to  conduct  the  fight ; 
it  could  not  examine  the  books  of  "A " ;  it  would  be 
woefully  handicapped  in  its  struggle. 

Let  the  Wisconsin  railroad  commission  be  illustrated  by 
"H."  The  little  town  "B  "  can  go  to  "H"  and  ask  for  its 
help.  "H"  is  the  state  seeing  to  it  that  one  of  its  minor 
branches  has  fair  play.  It  has  a  permanent  office,  a 
permanent  staff  of  experts,  it  has  the  accounting  and 
the  legal  help  to  withstand  the  attacks  of  "A"  and 
until  "B  "  acquires  strength  enough  to  maintain  the 
same  staff  of  accountants  and  expert  help,  legal  and 
otherwise,  as  "H"  the  theory  is  that  it  is  far  better 
for  "B"  to  have  "#'s"  help  than  to  remain  in  this 
fight  alone. 


THE   REGULATION   OF   BUSINESS  69 

In  discussing  this  matter  Senator  Hatton  has  the 
following  to  say:  — 

"  While  the  state  has  the  power  to  absolutely  control  all  public 
service  corporations,  it  is  well  to  bear  in  mind  that  local  municipal 
government,  in  so  far  as  practicable,  is  the  true  policy  to  pursue 
and  wise  state  supervision,  when  dealing  with  public  utilities  sit- 
uated within  the  corporate  limits  of  cities,  will  emphasize  this 
principle  rather  than  ignore  or  override  it.  The  initiative  in  all 
local  public  utility  matters  should  remain  with  the  local  author- 
ities. The  right  to  review  and  regulate  should  be  assumed  and 
exercised  by  the  state. 

"  There  is  an  intermediate  field  between  absolute  control  and 
dictation  by  the  state  and  absolute  municipal  control  and  dicta- 
tion by  the  city  council.  This  intermediate  field  is  the  proper 
sphere  for  the  activities  of  the  state  commission  in  regulating  the 
public  service  utilities  situated  wholly  within  the  limits  of  cities. 
The  commission  will  then  occupy  the  position  of  a  disinterested 
tribunal  rendering  expert  service,  doing  that  which  is  not  practi- 
cable for  the  local  authorities  to  do,  such  as  valuation  of  plant, 
uniform  accounting,  reviewing  and  acting  as  arbitrators  in  matters 
of  rates  and  in  all  other  disputed  matters  arising  between  the  mu- 
nicipalities and  the  public  service  corporations. 

"  Thus  the  commission  becomes  an  efficient  aid  to  local  control. 
It  enlists  active  public  interest  through  publicity,  thus  bringing 
to  bear  upon  the  subject  the  powerful  controlling  influence  of  in- 
telligent public  opinion.  It  renders  assistance  to  local  authorities 
by  furnishing  reliable  data  for  use  in  dealing  with  the  utility  cor- 
porations direct,  or  in  legal  contest  with  it  in  the  courts." 

Professor  John  H.  Gray,  a  recognized  authority  on 
such  subjects,  has  said:  — 


70  THE   WISCONSIN   IDEA 

.  "  We  cannot  discuss,  for  want  of  suitable  data,  the  economic 
problems  connected  with  gas  supply.  We  lack  completely  data 
for  a  discussion  of  the  question  now  talked  about  so  much,  namely, 
public  ownership." 

Professor  Frank;  J.  Goodnow  of  Columbia  university 

says :  — 

"  The  development  of  any  science  of  municipal  administration 
js  rendered  practically  impossible  because  of  the  absence  of  all 
reliable  data." 

Despite  the  forebodings  of  those  who  believed  that 
the  law  would  keep  localities  from  establishing  municipal 
plants  or  buying  those  already  in  existence,  that  it  is 
still  possible  to  take  over  municipal  enterprises  is  shown 
by  the  fact  that  three  water  companies  have  been  ac- 
quired by  municipalities  and  a  gas  and  electric  light 
company  is  just  about  to  be  taken  over,  while  two 
other  cities  have  applied  for  permission  to  purchase 
water  works  and  will  doubtless  do  so  in  the  near 
future.  If  municipal  enterprises  can  be  bought  in 
this  manner  in  spite  of  the  tremendous  debt  limit  of 
cities,  it  shows  that  the  municipal  ownership  is  some- 
what of  a  club  outside  of  any  regulation  by  the  com- 
mission. 

The  simple,  clean-cut  procedure  existing  in  the  railroad 
commission  act  was  copied  in  this  law  almost  without 
change. 


THE  REGULATION  OF  BUSINESS  71 

STOCK  AND  BOND  LAW 

The  stock  and  bond  law  is  not  as  great  a  necessity  in 
Wisconsin  as  it  would  be  if  there  was  not  physical  valua- 
tion. With  physical  valuation  and  a  rate  based  upon  it 
and  other  elements  accompanying  it,  if  a  company  is 
greatly  overstocked  it  will  have  to  suffer.  As  far  as 
the  consumer  is  concerned  a  stock  watering  law  would 
be  of  little  concern.  Of  course  that  is  not  true  regarding 
the  stock  and  bond  holder.  However,  the  new  stock 
and  bond  law  which  applies  to  every  public  service  cor- 
poration has  the  same  elements  in  it  which  are  in  evi- 
dence throughout  this  legislation,  that  is,  using  the  device 
of  reasonableness  as  a  standard  enforceable  by  the  com- 
mission. The  following  sections  from  that  law  will  illus- 
trate this :  — 

"  Issue  not  to  exceed  amount  reasonably  necessary.  Section 
1 7  53-4-  No  public  service  corporation  shall  hereafter  issue  for 
any  purposes  connected  with  or  relating  to  any  part  of  its  business, 
any  stocks,  certificates  of  stock,  bonds,  notes,  or  other  evidences 
of  indebtedness,  to  an  amount  exceeding  that  which  may  from 
time  to  time  be  reasonably  necessary  for  the  purpose  for  which 
such  issue  of  stock,  certificates  of  stock,  bonds,  notes,  or  other  evi- 
dences of  indebtedness  may  be  authorized. 

"  Issues  for  money  only;  commission's  certificate.  Section 
I753~9-  3-  If  the  commission  shall  determine  that  such  proposed 
issue  complies  with  the  provisions  of  this  act  such  authority  shall 
thereupon  be  granted,  and  it  shall  issue  to  the  corporation  a  cer- 
tificate of  authority,  stating :  (a)  the  amount  of  such  stocks,  cer- 


72  THE   WISCONSIN  IDEA 

tificates  of  stock,  bonds,  notes,  or  other  evidences  of  indebtedness 
reasonably  necessary  for  the  purposes  for  which  they  are  to  be 
issued,  and  the  character  of  the  same ;  (b)  the  purposes  for  which 
they  are  to  be  issued,  and  (c)  the  terms  upon  which  they  are  to  be 
issued.  Such  corporation  shall  not  apply  the  proceeds  of  such 
stock,  bonds,  notes,  or  other  evidences  of  indebtedness  as  afore- 
said, to  any  purposes  not  specified  in  such  certificate,  nor  issue 
such  stock,  bonds,  notes,  or  other  evidences  of  indebtedness,  on 
any  terms  not  specified  in  such  certificate. 

"  Consolidations;  commission's  valuation  first  required.  Section 
1 7 53-1 1 .  2.  No  public  service  corporation  shall  purchase,  directly 
or  indirectly,  or  in  any  way  acquire  the  property  of  any  other  public 
service  corporation  or  of  any  person  furnishing  service  to  the  pub- 
lic, for  the  purpose  of  effecting  a  consolidation,  except  that  the 
property  of  such  corporation  or  person  shall  first  be  valued  as 
provided  in  subsection  5  of  section  1753-9  of  the  statutes,  and 
then  only  at  a  sum  not  to  exceed  the  value  found  and  determined 
by  the  commission  and  stated  in  the  certificate  of  authority  issued 
to  such  corporation  for  the  issuance  of  stocks,  certificates  of  stock, 
bonds,  notes,  or  other  evidences  of  indebtedness." 

The  commission  is  given  the  authority  to  determine 
in  a  scientific  way  whether  certain  issues  are  or  are  not 
reasonable,  and  is  also  given  full  power  of  supervision. 
It  was  a  difficult  law  to  draft  and  it  may  be  said  to  be 
largely  experimental.  The  court  decisions  throughout 
the  country  have  involved  the  stock  watering  situation 
to  such  a  degree  that  it  is  very  hard  to  delegate  power 
to  a  commission,  and  it  is  very  probable  that  this  stock 
and  bond  law  goes  as  far  in  this  matter  as  the  decisions 


THE   REGULATION   OF   BUSINESS  73 

of  the  courts  will  permit.  The  fixing  of  rates  within  the 
state  is  an  easy  thing  compared  with  the  complex  prob- 
lem of  trying  to  place  a  valuation  upon  the  assets  and 
expansion  and  absorbing  power  of  a  corporation  existing 
in  several  states. 

INSURANCE 

The  development  of  insurance  legislation  under  the 
able  management  of  Herman  L.  Ekern,  the  present  in- 
surance commissioner,  has  been  remarkable.  It  will  be 
observed  that  the  same  principles  run  through  insurance 
legislation,  i.e.  that  the  contract  conditions  must  be 
made  plain,  the  accounting  given  the  proper  publicity, 
the  business  made  public  and  the  cost  as  cheap  as  pos- 
sible, involving  as  little  litigation  as  possible.  No 
attempt  has  been  made  to  develop  this  department  to 
the  point  reached  by  the  railroad  commission  act,  but 
the  foundation  evidently  has  been  laid  for  a  thorough 
control  of  the  company  and  the  protection  of  the  indi- 
vidual which  is  assured  under  the  other  act.  With  the 
introduction  of  industrial  accident  insurance,  the  depart- 
ment bids  fair  to  develop  into  as  great  an  institution  as 
the  railroad  commission.  Certainly  as  time  goes  on,  it 
will  have  to  assume  some  position  similar  to  that  of  the 
German  department  if  the  kind  of  legislation  which  is 
now  being  undertaken  continues  to  be  enacted.  It  is 
the  intention  of  the  legislators  to  make  the  office  of  the 


74  THE   WISCONSIN  IDEA 

insurance  commissioner  as  important  as  any  in  the  state. 
It  has  been  gradually  recognized  that  the  problem  of 
poverty  and  its  prevention  must  centre  to  a  large  degree 
around  the  question  of  insurance. 

The  advance  in  insurance  legislation  cannot  be  better 
described  than  in  the  words  of  the  commissioner  himself. 
Says  Mr.  Ekern :  — 

"  The  idea  underlying  the  insurance  legislation  of  Wisconsin  is 
that  the  policy-holder  is  entitled  to  have  placed  before  him  in  in- 
telligible form  the  exact  facts  with  regard  to  his  insurance,  and  to 
insist  that  the  companies  shall,  in  every  respect,  live  up  to  the  true 
spirit  and  intent  of  their  policy  contracts,  and  that  insurance  should 
not  be  permitted  where  the  expenses  exceed  a  legitimate  proportion 
of  the  insurance  benefits  furnished. 

"  The  Wisconsin  laws  limit  the  amount  which  may  be  added  to 
the  premiums  of  life  insurance  companies  for  expenses,  and  limit 
the  expenses  to  the  amount  so  collected.  The  effect  of  the  first 
requirement  has  been  to  lower  insurance  premiums  in  this  state 
in  some  instances  as  much  as  $5.54  per  $1000  of  insurance  per  year ; 
and  the  effect  of  the  latter  has  been  to  reduce  the  expenses  gen- 
erally of  insurance  companies  doing  business  in  the  state,  so  as  to 
enormously  benefit,  not  alone  new  policy-holders,  but  old  policy- 
holders,  in  both  their  annual  and  deferred  dividends.  The  money 
which  companies  heretofore  took  from  the  savings  of  old  policy- 
holders  to  pay  extravagant  commissions  and  other  expenses 
are  now  being  returned  to  the  policy-holders  to  whom  they  be- 
longed. 

"  The  Wisconsin  law  requires  that  every  stock  company  an- 
nually relicensed  in  the  state,  which  purports  to  transact  a 
participating  business,  shall  file  a  statement  setting  forth  the  share 


THE   REGULATION   OF   BUSINESS  75 

of  the  policy-holders  and  the  stockholders  in  the  accumulated  sur- 
plus. It  was  this  requirement  which  was  responsible  for  the  with- 
drawal of  the  Union  Central  Insurance  Company  of  Ohio  from 
Wisconsin.  It  was  fully  justified  by  the  subsequent  action  of  the 
company  in  apportioning  to  its  stockholders  almost  half  a  million 
dollars  of  surplus  which  the  courts  of  Ohio  finally  held  they  had 
no  power  to  prevent. 

"  This  law  was  also,  in  part  at  least,  responsible  for  the  with- 
drawal of  the  Equitable  Life  Assurance  Society  of  New  York, 
which,  notwithstanding  it  has  in  its  charter  a  provision  that  divi- 
dends shall  be  paid  above  7  per  cent  still  finds  its  one  hundred 
thousand  dollars  of  stock  valued  in  the  millions. 

"  The  new  law  further  provides  that  a  statement  shall  be  given 
to  every  annual  dividend  policy-holder  every  year  telling  him  of  the 
gains  and  savings  of  the  company  during  the  year  from  death 
claims,  interest  and  expenses,  and  the  proportion  and  amount  of 
each  returned  to  him  in  dividends  in  dollars  and  cents  in  a  manner 
which  he  can  understand.  The  interests  of  deferred  dividend 
policy-holders  are  safeguarded  by  requiring  an  apportionment  of 
the  accumulations  to  any  individual  policy-holder,  and  that  on 
request  he  shall  be  informed  of  the  amount  so  apportioned  to  his 
credit. 

"  Provision  is  also  made  for  a  system  of  electing  the  directors 
and  officers  in  mutual  companies  of  the  state,  which  assures  the 
control  to  the  policy-holders,  whenever  occasion  arises  for  a  change 
of  control.  The  salaries  of  officers  in  mutual  life  insurance  com- 
panies is  limited  to  $25,000,  unless  the  policy-holders  vote  a  larger 
amount.  Statements  are  required  as  to  all  legislative  expenditures 
and  political  contributions  prohibited.  The  sale  of  stock  in  life 
insurance  companies  is  prohibited,  unless  the  contract  informs  the 
purchaser  of  the  amount  of  his  money  to  be  expended  for  the  pro- 


76  THE  WISCONSIN  IDEA 

motion  of  the  company.  The  law  now  makes  possible  the  organi- 
zation of  new  life  insurance  companies  on  a  sound  and  legitimate 
basis,  and  later  amendments  permit  the  organization  of  mutual 
companies  for  the  insurance  of  employers  against  their  liability  for 
the  injury  or  death  of  employees  and  for  the  insurance  of  deposits 
by  banks. 

"  One  mutual  employer's  liability  insurance  company  is  already 
doing  business  and  others  are  about  to  be  organized.  A  com- 
mittee of  the  State  Bankers'  Association  is  at  work  formulating  a 
plan  for  the  organization  of  a  bankers'  mutual  insurance  company 
for  the  protection  of  depositors.  Provision  has  been  made  for  the 
granting  of  life  insurance  and  annuities  by  the  state  in  the  state  life 
fund  on  an  absolutely  safe  plan  of  collecting  a  sufficient  advance 
premium  and  returning  the  savings.  The  same  idea  has  been 
extended  to  fraternal  insurance  by  providing  for  helping  the  frater- 
nal societies  to  find  out  where  they  stand  and  to  get  this  informa- 
tion out  to  their  members  in  the  most  intelligible  form  and  to  bring 
about  as  much  as  possible  a  more  general  knowledge  of  the  real 
principles  upon  which  insurance  is  based.  In  all  this  legislation 
there  are  no  arbitrary  requirements,  save  only  in  prohibiting  the 
collection  of  expense  money  in  excess  of  a  definite  proportion  of 
the  insurance  benefit  to  be  furnished.  In  other  respects,  the  idea 
is  merely  to  insist  that  the  policy-holder  shall  understand  his  con- 
tract and  the  principles  on  which  it  is  based  and  the  conditions 
under  which  it  is  made,  and  that  the  company  shall  live  up  to  the 
contract." 

More  interesting  because  more  experimental,  is  the 
state  insurance  fund  passed  as  chapter  577,  laws  of  1911. 
The  following  outline  of  this  law,  taken  from  an  address 
delivered  before  the  National  convention  of  insurance 


THE  REGULATION   OF   BUSINESS  77 

commissioners  at  Milwaukee,  Wisconsin,  August  23, 
1911,  by  Mr.  Ekern,  commissioner  of  insurance,  gives  an 
insight  into  the  state  life  fund. 

"  The  Wisconsin  Legislature  of  1911  established  a  '  Life  Fund  * 
for  the  purpose  of  granting  life  insurance  and  annuities  to  persons 
who  are  within  the  state  or  residents  thereof.  This  is  to  be  ad- 
ministered by  the  state  without  liability  beyond  the  fund.  The 
state  treasurer  is  charged  with  the  care  of  the  assets.  All  other 
matters  relating  to  such  funds  are  under  the  supervision  of  the 
commissioner  of  insurance. 

"  Policies  may  be  issued  to  persons  between  the  ages  of  twenty 
and  fifty  years.  Life  insurance  may  be  granted  in  sums  of  $500 
or  multiples  not  exceeding  $1000  until  the  number  of  insurants 
exceeds  one  thousand,  and  not  exceeding  $2000  until  the  number 
of  insurants  exceeds  three  thousand  and  not  in  any  event  exceeding 
$3000.  Annuities  may  be  granted  to  begin  at  the  age  of  sixty  years 
or  over  in  sums  of  $100,  $200,  or  $300.  The  same  policy  may  com- 
bine both  a  life  insurance  and  an  annuity. 

"  The  statute  fixes,  the  premium  which  for  life  insurance  must 
be  based  upon  the  American  experience  table  of  mortality,  with 
additions  for  extra  hazards,  and  with  interest  at  three  per  cent, 
and  with  an  addition  for  expenses  and  contingencies  amounting  to 
two  dollars  per  year  per  thousand  dollars  of  insurance  and  one-sixth 
of  the  value  of  the  insurance  distributed  equally  through  the  pre- 
mium payments. 

"  The  basis  for  annuity  premiums  is  the  British  offices  annuity 
tables,  with  interest  at  three  per  cent,  with  a  like  one-sixth  addition 
for  expenses. 

"  There  must  be  a  medical  examination  on  every  application  for 
life  insurance.  The  medical  examiner  receives  a  fee  of  two  dollars 


78  THE   WISCONSIN  IDEA 

paid  from  a  deposit  made  by  the  applicant.  No  commissions  or 
fees  are  paid  to  any  person,  except  that  the  person  transmitting 
an  application,  whether  the  insured  or  any  other,  is  entitled  to 
deduct  a  fee  of  twenty-five  cents  from  the  initial  premium  payment 
and  any  person  transmitting  any  premium  may  also  deduct  a  fee 
of  one  per  cent  of  the  premium.  These  deductions  are  made  by 
the  insured  when  he  transmits  his  own  premium.  Every  applica- 
tion must  be  accompanied  by  a  premium  for  at  least  three  months. 
The  state  board  of  health  and  the  commissioner  of  insurance  pass 
upon  the  applications  for  insurance.  If  the  application  is  rejected, 
the  deposit  is  returned  less  the  fees.  If  accepted,  the  premium  is 
paid  to  the  state  treasurer  and  a  policy  issued  signed  by  the  com- 
missioner of  insurance  and  the  state  treasurer. 

"  Loans  may  be  made  to  an  amount  which  with  interest  does 
not  exceed  the  reserve.  On  the  nonpayment  of  a  premium  the 
sum  is  charged  as  a  loan  so  long  as  the  reserve  is  sufficient.  The 
whole  or  any  part  of  any  loan  may  be  repaid  at  any  time.  The 
policy  may  be  surrendered  for  cash  on  any  anniversary,  after  six 
months'  notice  in  writing.  Losses  and  other  payments  are  passed 
upon  by  a  board  consisting  of  the  state  treasurer,  attorney  general 
and  commissioner  of  insurance  and  audited  by  the  secretary  of 
state. 

"  Provision  is  made  for  a  surplus  to  be  made  up  from  fifty  per 
cent  of  the  savings  and  earnings  during  the  first  year  of  all  policies 
issued  and  from  a  contribution  reduced  by  5  per  cent  each  subse- 
quent year  until  the  ninth  year,  and  thereafter  the  contribution 
to  the  surplus  is  10  per  cent.  All  the  remaining  surplus  is  distrib- 
uted annually  to  the  policy-holders,  beginning  the  first  year  and 
continuing  every  year  while  the  insurance  is  in  force. 

"  The  accounts  are  kept  by  the  commissioner  of  insurance  and 
audited  as  the  accounts  of  other  state  officers.  Valuations  and 


THE   REGULATION   OF   BUSINESS  79 

reports  are  required  the  same  as  from  life  insurance  companies. 
The  bonds  of  the  state  treasurer,  the  commissioner  of  insurance, 
of  all  county,  city,  village,  and  town  treasurers,  and  of  every  state 
depository,  must  include  a  liability  for  all  premiums  and  other 
money  received  for  the  life  fund.  Investments  may  only  be  made 
as  provided  for  life  insurance  companies.  The  commissioner  is 
given  two  years  to  put  the  act  into  effect." 

Another  decided  advance  toward  state  insurance  was 
taken  when  a  state  insurance  fund  to  provide  for  fire 
loss  on  state  property  was  created.  The  provisions  of 
this  act  were  extended  by  chapter  603,  laws  of  1911,  to 
cover  the  property  and  buildings  owned  by  counties. 

Directly  in  line  with  the  general  principle  that  ap- 
pointive experts  should  administer  the  law  and  corre- 
lated with  the  short  ballot  propaganda  is  chapter  484, 
laws  of  1911,  making  the  insurance  commission  appoint- 
ive for  a  four-year  term  instead  of  elective.  That  the 
legislature  took  care  to  restrict  the  political  activity  of 
any  commissioner  may  be  seen  by  the  following  excerpt 
from  the  law: —  . 

"  Section  ig66y.  2.  The  person  so  appointed  as  such  com- 
missioner shall  be  known  to  possess  a  knowledge  of  the  subject  of 
insurance,  and  skill  in  matters  pertaining  thereto.  No  person  ap- 
pointed as  such  commissioner  shall  hold  any  other  office  under 
the  laws  of  this  or  of  any  other  state  or  of  the  United  States.  Such 
commissioner  shall  devote  his  entire  time  to  the  duties  of  the  office, 
and  shall  not  hold  any  position  of  trust  or  profit,  engage  in  any 
occupation  or  business  interfering  with  or  inconsistent  with  his 


80  THE  WISCONSIN  IDEA 

duties,  or  serve  on  or  under  any  political  committee  or  as  mana- 
ger of  any  political  campaign  for  any  candidate  or  party." 

At  the  present  time  there  is  a  committee  of  the  legis- 
lature investigating  the  question  of  fire  insurance.  The 
contracts  and  conditions  of  fire  insurance  need  examina- 
tion, and  it  is  not  improbable  that  legislation  will  be 
recommended  by  this  committee  along  the  same  general 
lines  as  prevail  through  the  whole  regulative  plan.  The 
private  board  of  fire  insurance  companies  fixes  a  certain 
rate  for  fire  insurance.  If  one  thinks  that  rate  extor- 
tionate, or  therefore  wrong,  what  appeal  has  he?  It  is 
simply  a  question  of  contract,  and  he  can  accept  the 
insurance  or  not,  as  he  chooses.  This  seems  to  be  the 
argument  of  the  legislature.  It  is  quite  probable  that 
fire  insurance  will  also  be  recognized  by  legislation  as  a 
business  affected  with  a  public  interest  to  a  greater  extent 
than  it  has  been  formerly. 

TAXATION 

The  tax  commission  was  the  earliest  of  the  great  com- 
missions to  be  formulated  in  Wisconsin,  being  created 
by  chapter  206,  laws  of  1899.  It  consists  of  three  ap- 
pointive members  and  has  a  joint  arrangement  with  the 
railroad  commission  for  the  use  of  experts  in  the  rating 
of  property.  Gradually  all  the  great  corporations  have 
been  placed  upon  an  ad  valorem  basis,  so  that  here,  too, 
physical  valuation,  with  all  of  its  advantages,  is  basic. 


THE  REGULATION   OF  BUSINESS  8 1 

As  has  been  pointed  out  before,  the  fact  that  the  ad 
valorem  system  of  taxation  was  applied  to  railroads  pre- 
cipitated the  railroad  rate  fight  in  1903.  If  railroads 
were  taxed  without  being  regulated  as  to  rates,  it  was 
felt  that  the  burden  would  be  shifted  to  the  public. 

The  commission  has  great  powers,  through  which  a 
centralized  and  uniform  state-wide  system  of  taxation 
has  been  built  up.  Local  assessors  are  checked  by 
county  supervisors  of  assessment,  who  in  turn  are  care- 
fully instructed  by  the  commission.  The  money  col- 
lected is  retained  by  the  state  or  apportioned  to  the 
localities  on  a  percentage  basis.  The  whole  work  is 
based  upon  actual  valuation,  and  a  large  corps  of  en- 
gineers and  experts  is  employed  for  this  purpose.  The 
law  and  its  methods  have  been  copied  by  many  states. 

Railroad  Taxation 

The  tax  commission  makes  an  annual  assessment  of 
all  property  of  railroad  companies  within  the  state  on 
the  basis  of  cost  of  reproduction  (new)  minus  deprecia- 
tion. The  definition  of  property  includes  all  franchises, 
rights  of  way,  road  bed,  tracks,  terminals,  rolling  stock, 
equipment  and  all  other  real  and  personal  property  of  a 
company  used  in  conducting  the  business,  but  excludes 
real  estate  not  adjoining  the  tracks,  stations  or  terminals; 
grain  elevators  and  coal  docks,  ore  docks,  and  merchan- 
dise docks,  and  real  estate  not  necessarily  used  in  operat- 


82  THE   WISCONSIN   IDEA 

ing  the  railroad  are  excepted,  and  shall  be  subject  to 
taxation  like  the  property  of  individuals.  The  true  cash 
value  of  the  railroad  property  is  found  by  the  tax  com- 
mission (chapter  315,  laws  of  1903).  When  the  value  of 
railroad  property  has  been  ascertained,  the  statute  pro- 
vides that  the  returns  from  all  the  taxes  of  the  state  for 
state,  county  and  local  purposes,  except  special  assess- 
ments on  local  improvements,  shall  be  aggregated  by  the 
tax  commission.  From  the  aggregate  of  the  true  cash 
value  of  the  general  property  of  the  state  as  found  by  the 
tax  commission,  and  the  aggregate  amount  of  taxes,  the 
board  computes  the  average  rate  of  taxation,'  which  rate 
so  arrived  at,  constitutes  the  rate  of  taxation  of  all  rail- 
road property.  The  rate  is  applied  to  all  railroad  com- 
panies and  is  to  be  paid  to  the  state  treasurer  at  stated 
intervals,  and  become  a  part  of  the  general  fund  for  the 
use  of  the  state. 

On  the  same  basis  telegraph  companies,  express  com- 
panies, sleeping  car,  freight  line  and  equipment  com- 
panies are  assessed  by  the  commission  on  the  actual 
value  of  the  property  in  the  state,  subject  to  assessment 
with  such  change  as  the  character  of  the  property  re- 
quires. All  money  so  collected  is  part  of  the  general 
fund  of  the  state. 

Chapter  493,  laws  of  1905,  provides  for  the  taxation  of 
the  property  of  street  railways,  and  electric  light,  heat- 
ing and  power  companies,  operated  in  connection  with 


THE   REGULATION   OF   BUSINESS  83 

street  railways  according  to  the  valuation  in  substan- 
tially the  manner  as  in  the  act  for  the  ad  valorem  valuation 
of  steam  railroads.  All  other  public  service  com- 
panies not  so  operated  come  under  the  general  assess- 
ment laws,  and  taxes  therefrom  are  turned  over  to  the 
localities.  The  entire  tax  from  this  source  is  paid  to 
the  state  treasurer,  and  85  per  cent  is  audited  and  paid 
back  to  municipalities.  Fifteen  per  cent  (15  %)  of  the 
tax  is  retained  by  the  state  and  85  per  cent  is  distributed 
to  the  localities  through  which  the  lines  are  operated  in 
proportion  to  property  located  and  business  transacted 
within  the  several  towns,  villages  and  cities,  through 
which  the  lines  run.  Street  railways  are  also  taxed  at 
the  same  rate  of  taxation  as  railroad  property. 

Income  Tax 

Under  its  administration  have  been  placed  the  new 
income  tax  law  as  well  as  the  graduated  inheritance  tax 
law.  Both  of  these  acts  have  special  expert  men  for 
the  sole  purpose  of  enforcing  them.  The  income  tax 
deserves  some  slight  mention. 

This  law  (chapter  658,  laws  of  1911)  is  now  exciting 
much  discussion  in  the  state,  and  public  opinion  is  quite 
evenly  divided  as  to  its  wisdom,  but  seems  to  be  slowly 
becoming  friendly  —  perhaps  as  quickly  as  can  be  ex- 
pected for  an  act  of  this  kind  in  an  American  community. 
It  is  an  honest  attempt  to  supplant  the  personal  property 


84  THE   WISCONSIN   IDEA 

tax  in  an  equitable  manner.  A  pamphlet  issued  by  the 
tax  commission  prints  this  section  with  the  following 
comment :  — 

"  Personal  property  tax  receipts  may  be  of  set  against  income  tax 
when 

"  Section  1087111-26.  Any  person  who  shall  have  paid  a  tax 
upon  his  personal  property  during  any  year  shall  be  permitted  to 
present  the  receipt  therefor  to,  and  have  the  same  accepted  by, 
the  tax  collector  to  its  full  amount  in  the  payment  of  taxes  due 
upon  the  income  of  such  person  during  said  year.  Any  bank  which 
has  paid  taxes  during  any  year  upon  its  shares  assessed  to  the  in- 
dividual stockholders  thereof  shall  be  entitled,  under  the  provisions 
of  this  section,  to  present  the  receipt  therefor,  and  have  the  same 
accepted  by  the  tax  collector  to  its  full  amount  in  the  payment  of 
taxes  due  upon  the  income  of  such  bank  during  said  year. 

"  This  section  is  construed  to  mean  that  if  a  person  or  corpora- 
tion has  paid  a  personal  property  tax,  say  for  the  year  1912,  the 
receipt  for  such  tax  may  be  presented  to  the  tax  collector  in  pay- 
ment of  income  taxes  which  have  become  due  in  said  year.  The 
*  taxes  due  upon  the  income  of  such  person  during  said  year  '  are 
taxes  which  are  based  upon,  and  the  amount  of  which  is  determined 
by,  the  income  of  the  preceding  year.  It  would  therefore  follow 
that  the  year  referred  to  is  not  the  year  in  which  the  income  is 
received,  but  the  year  in  which  the  income  tax  becomes  due.  In 
view  of  the  fact  that  the  exemption  of  intangible  personal  property 
provided  for  by  this  law  does  not  take  effect  until  1912,  it  is  believed 
that  the  intention  of  the  legislature  was  to  limit  the  operation  of 
this  section  to  personal  property  taxes  of  1912  and  thereafter. 
This  view  is  strengthened  by  the  next  section,  which  provides  that 
all  taxes  assessed  in  1911  shall  remain  unaffected  by  this  law. 


THE  REGULATION  OF  BUSINESS  85 

"  The  general  character  of  the  law  and  the  circumstances  at- 
tending its  adoption  leave  no  doubt  that  the  income  tax  was  in- 
tended to  be  very  largely  a  substitute  for  the  tax  on  personal  prop- 
erty ;  and  in  pursuance  of  this  policy,  stocks,  bonds,  money  and 
other  important  classes  of  personalty  are  exempted  from  taxation 
after  1911.  This  exemption  was  in  exchange  for  or  in  considera- 
tion of  the  imposition  of  an  income  tax ;  and  until  the  income  tax 
becomes  operative  the  exemption  has  no  force.  Accordingly  a 
tax  on  personal  property  assessed  and  levied  in  1911,  but  paid,  say 
on  January  10,  1912,  cannot  be  used  to  offset  an  income  tax  as- 
sessed in  1912  and  paid,  say  on  December  30,  1912.  In  other 
words,  the  two  assessments  must  be  of  the  same  year.  To  hold 
otherwise  it  is  believed  would  amount  practically  to  making  the 
exemption  of  stocks,  bonds,  moneys,  etc.,  take  effect  one  year 
earlier  than  the  date  specifically  set  by  the  legislature. 

"  For  analogous  reasons  taxes  paid  on  personal  property  in 
other  states  cannot  be  used  to  offset  the  income  tax  of  this  state. 
A  tax  paid  on  personalty  in  one  assessment  district,  however,  may 
be  used  to  offset  an  income  tax  in  another  district." 

The  rates  are  low,  the  exemptions  reasonable  and 
70  per  cent  of  the  revenue  will  go  into  the  local  treasury. 
The  wording  of  the  administrative  portion  is  very  strong 
with  centralization  in  the  tax  commission.  The  assessors 
will  be  selected  under  civil  service  and  no  pains  have 
been  spared  to  make  the  act  enforceable  and  equitable 
to  a  high  degree.  Perhaps  no  other  state  in  the  Union 
could  attempt  to  install  machinery  of  this  sort  without 
political  wire  pulling  or  favoritism.  This  part  of  the 
law  reads:  — 


86  THE  WISCONSIN  IDEA 

"  Assessors  of  income  —  how  appointed. 

"  Section  loSym-S.  2.  Not  less  than  thirty  days  prior  to  the 
first  of  March,  1912,  there  shall  be  selected  and  appointed  by  the 
state  tax  commission  an  assessor  of  incomes  for  each  assessment 
district  in  the  state,  who  shall  hold  office  for  a  term  of  three  years 
unless  sooner  removed  as  hereinafter  provided.  Such  assessor 
shall  be  a  citizen  and  an  elector  of  this  state,  but  need  not  be  a 
resident  of  the  district  in  which  he  is  appointed  to  serve ;  provided, 
however,  that  so  far  as  practicable,  preference  shall  be  given  in 
making  such  appointments  to  residents  of  the  districts." 

Moneys,  debts  due  and  to  become  due,  all  stocks  and 
bonds  not  otherwise  specially  provided  for,  are  exempt 
from  taxation.  The  law  was  declared  constitutional  on 
January  9,  1912,  by  the  Wisconsin  supreme  court.  Its 
advocates  do  not  claim  perfection  for  it ;  they  admit  that 
it  is  experimental  but  fundamentally  right. 


Educational 

For  common  school  purposes  there  is  a  ^  mill  tax 
levied  on  general  property  of  the  state  as  determined  by 
the  tax  commission,  exclusive  of  the  property  of  cor- 
porations which  pay  fees  or  are  assessed  by  the  state 
board. 

For  the  support  of  the  university  there  is  a  tax  of  f 
of  a  mill  upon  each  dollar  of  assessed  valuation  of  general 
property  of  the  sta|:e,  as  determined  by  the  commission 
(chapter  631,  laws  of  1911).  Under  the  same  law  there 


THE   REGULATION   OF   BUSINESS  87 

is  annually  levied  and  collected  for  the  normal  school 
fund  income,  J  of  one  mill  for  each  dollar  of  assessed 
valuation  of  taxable,  general  property  of  the  state  as 
fixed  by  the  tax  commission. 

BANKING 

The  state  has  a  strong  banking  code  developed  with 
great  care.  It  gives  general  satisfaction,  provides  for 
the  utmost  publicity  and  care  in  its  control  and  in  line 
with  all  Wisconsin  legislation,  it  recognizes  banking  as  a 
business  affected  by  a  public  interest.  It  does  not  per- 
mit private  banking  which  has  proved  so  pernicious  in 
other  states.  All  banks  must  be  public  under  this  act. 
The  result  has  been  that  not  a  citizen  of  the  state  has 
lost  a  dollar  through  the  state  banks  since  it  was  enacted 
into  law. 


CHAPTER  IV 

ELECTORAL  AND  GOVERNMENTAL  CHANGES 

The  Primary  Election 

THE  Wisconsin  primary  election  law,  defective  as  it 
has  been,  has  perhaps  been  more  examined,  criticised 
and  discussed  than  any  other  of  its  kind. 

The  reason  for  the  primary  is  obvious.  The  pressure 
brought  to  bear  on  conventions  by  the  great  economic 
forces  which  dominated  this  country  aroused  public 
sentiment  and  made  it  necessary  to  have  more  direct 
means  of  nomination. 

Whatever  may  be  the  defects  of  the  direct  nomina- 
tion of  candidates,  it  must  be  said  that  with  organized 
and  vigilant  monopolistic  power  in  existence,  a  system, 
by  which  a  few  men  gathered  together  to  select  others 
who,  in  turn,  selected  others  as  candidates,  was  so  com- 
plicated and  presented  so  many  opportunities  for  in- 
fluence or  corruption  that  it  had  to  go.  As  a  business 
device  it  would  go  wrong,  as  there  was  absolutely  no 
way  of  fixing  responsibility.  The  uneasiness  felt  by  the 
people  because  those  who  determined  its  policies  did  not 
represent  the  real  sentiment,  had  to  be  pacified  in  some 

88 


ELECTORAL   AND   GOVERNMENTAL   CHANGES  89 

way.  It  was  felt  that  the  primary  was  the  means  for 
combating  the  secret  intrigue  which  skilled  corporation 
employees  could  sustain  in  a  caucus  and  convention 
system.  From  this  point  of  view  it  was  absolutely 
necessary  and  fundamental  if  any  plan  for  the  efficient 
control  of  the  great  dominating  influences  could  be 
carried  out. 

The  law  was  unfortunate  in  its  passage.  Several  bills 
were  discussed  all  of  which  were  more  or  less  defective. 
Finally  without  due  amendment  and  discussion  as  to 
details,  the  enemies  of  the  bill  agreed  suddenly  to  let 
one  of  these  bills  be  submitted  to  the  people.  For 
several  years  it  was  practically  impossible  to  amend  it 
in  the  slightest  degree.  Any  proposition  to  amend  it 
was  at  once  defeated  with  the  explanation :  this  law  has 
been  passed  by  the  people;  let  us  wait  and  see  how  it 
works  before  we  amend  it. 

Therefore  it  had  defects  which  were  very  serious 
ones.  However  it  has  since  been  amended  and  seems 
destined  to  remain  on  the  Wisconsin  statute  books. 
There  are  those  who  believe  that  some  of  the  state 
officers  should  not  be  included  in  the  primary  law. 
Without  a  short  ballot,  it  is  difficult  to  judge  of  the  fit- 
ness of  a  secretary  of  state,  a  state  treasurer  or  an 
attorney-general.  Fortunately  there  are  very  few  such 
officers  in  this  state,  but  in  the  opinion  of  many  who 
have  studied  the  question  well,  in  those  states  which 


90  THE   WISCONSIN   IDEA 

have  a  multiplicity  of  elective  state  officers  there  may 
be  further  justification  for  the  above  criticism.  The 
remedy  may  be  in  the  short  ballot  principle.  In  the 
opinion  of  the  writer,  the  offices  of  secretary  of  state, 
state  treasurer  and  attorney-general  should  be  appointive. 
The  position  of  insurance  commissioner  was  made  ap- 
pointive in  Wisconsin  in  1911.  There  is  no  question 
but  that  the  primary  election  law  should  have  been  fol- 
lowed at  once  by  a  corrupt  practices  act  limiting  in  some 
way  the  amount  of  money  to  be  spent,  but  it  was  im- 
possible to  enact  such  a  law  at  the  time  the  primary 
law  was  passed.  The  primary  has  sometimes  proven 
too  costly  because  of  this  grave  omission,  but  the  fault 
lies  not  with  the  friends  of  the  primary  as  they  soon  saw 
its  defects  and  session  after  session  tried  to  remedy 
them. 

It  is  evident  that  the  Wisconsin  legislature  is,  on  the 
whole,  improving  from  year  to  year.  There  are  not  as 
many  brilliant  leaders  as  formerly  but  neither  are  there 
as  many  stupid  or  corrupt  men.  The  primary  seems  to 
elect  a  middle  class  average  man  of  independence  and 
intelligence.  The  old  system  tended  to  elect  either 
brilliant,  well-known  men  or  those  who  were  merely 
pawns  in  the  game.  Under  the  primary,  individuals 
announce  their  intention  of  becoming  candidates  and 
fearlessly  run  for  office.  Legislators  have  often  ad- 
mitted to  the  writer  that  they  would  not  attempt  to 


ELECTORAL  AND   GOVERNMENTAL   CHANGES  QI 

run  for  office  under  the  old  system.  No  one  has  to  ask 
for  that  privilege  now.  Bagehot,  in  his  "History  of  the 
British  Constitution,"  somewhere  says  that  the  best 
government  is  that  in  which  there  is  a  limited  number  of 
real  aggressive  leaders  and  a  great  many  who  are  will- 
ing to  be  led.  He  points  to  England  as  a  country  of 
this  type.  The  writer  does  not  agree  with  that  philoso- 
phy, but  nevertheless  he  must  admit  that  because  of  the 
new  primary  law,  there  is  sometimes  so  much  individual- 
ism in  the  Wisconsin  legislature  that  it  is  difficult  to 
promote  business  rapidly.  There  have  been  occasions 
when  to  some  extent  a  lack  of  unison  was  evident. 
Business  is  not  despatched  as  smoothly  as  formerly 
because  you  have  to  "show"  every  man.  Each  indi- 
vidual member  wants  to  know  about  it  and  talk  it  over 
and  he  is  unwilling  to  accept  such  leadership  as  was 
prevalent  under  the  old  system.  The  boss  is  not  wel- 
come now.  There  is  more  debate  and  more  discussion 
but  the  writer  considers  this  an  exceedingly  healthy 
symptom,  for  the  results  indicate  more  real  intelligence 
in  legislation. 

Although  the  law  is  long  and  involved,  it  can  be  sum- 
marized in  a  very  few  words ;  the  peculiar  features  of  it 
require  a  longer  description. 

The  most  noteworthy  feature  of  the  primary  election^ 
law  is  that  it  is  an  absolutely  direct  election,  compulsory ! 
and  state  wide.  It  was  intended  to  abolish  the  caucus] 


92  THE   WISCONSIN  IDEA 

and  it  does*  There  is  no  caucus  and  there  is  no  voting 
for  delegates  of  any  kind,  except  delegates  to  the  national 
convention.  Chapter  451,  laws  of  1903,  provides  for 
absolute  secrecy  and  a  thoroughgoing  secret  ballot  in- 
corporated into  the  primary  election  law.  It  is  what  is 
called  the  open  primary,  that  is,  there  is  no  test  of  party 
affiliation.  This  latter  feature  is  still  under  fire  and  has 
been  subjected  to  great  criticism,  but  the  chances  are 
that  any  attempt  to  repeal  it  would  be  defeated  by  at 
least  4  to  i  in  the  state.  Those  who  favor  it  justify 
their  attitude  on  the  basis  that  although  one  party  may 
go  into  another  party's  primary  and  nominate  its  weak 
man,  it  more  often  happens  that  the  independent  voter 
will  cast  his  vote  for  the  person  whom  he  considers  to 
be  right,  no  matter  to  what  party  he  belongs.  The 
reform  and  not  the  party  seems  to  be  the  main  issue  in 
Wisconsin,  and  there  are  those  who  vigorously  state  that 
the  badge  of  party  loyalty  has  too  long  been  a  mask 
used  in  defeating  the  manifest  will  of  the  people. 

The  non-partisan  spirit  generally  prevalent  in  Wis- 
consin helps  the  position  of  those  who  are  adherents  of 
the  open  primary  and  aids  the  accomplishment  of  the 
whole  program  of  direct  legislation. 

The  law  applies  to  all  elective  offices,  except  the  judges, 
the  state  superintendent  of  public  instruction  and  some 
minor  offices  in  towns,  villages,  school  districts,  etc.  It 
is  not  generally  used  in  small  cities  because  it  is  not 


ELECTORAL   AND    GOVERNMENTAL   CHANGES          93 

very  practical,  although  it  may  be  applied  to  all  cities. 
The  exemption  of  judges  and  educational  officers  is  char- 
acteristic of  the  Wisconsin  non-partisan  spirit. 

Finally,  delegates  to  the  national  convention  are 
elected  by  the  primary  and  provision  is  made  for  a 
statement  of  presidential  preference. 

The  act  also  contains  a  provision  for  second  choice 
which  it  is  hoped  will  tend  to  produce  a  majority  or  at 
least  something  approximating  a  majority.  This  law 
was  passed  in  1911  after  a  hard  struggle  which  started 
the  moment  the  first  bill  was  introduced.  Its  peculiar 
features  and  the  philosophy  behind  it,  need  some  ex- 
tended discussion,  as  its  great  importance  has  not  been 
fully  appreciated  throughout  the  country. 

The  second  choice  law  (chapter  200,  laws  of  1911)  is 
a  modification  of  the  system  used  in  Queensland  as  far 
back  as  1887. 

No  better  argument  in  favor  of  this  innovation  can  be 
given  than  that  used  by  Mr.  Charles  K.  Lush,  a  brilliant 
newspaper  man  and  author,  who  has  given  permission 
to  use  excerpts  from  his  pamphlet  "An  essential  amend- 
ment to  the  primary  law."  As  this  pamphlet  is  now 
out  of  print  and  the  discussion  is  so  exceedingly  valuable 
many  extracts  from  it  have  been  used.  It  must  be 
remembered  in  reading  it  that  it  was  written  before  the 
second  choice  law  was  passed.  However,  it  is  an  ex- 
planation of  what  was  actually  later  enacted  into  law. 


94 


THE   WISCONSIN  IDEA 


"  It  is  the  principle  that  the  nominee  of  a  political  party  should 
represent  the  party  principles  or  policy  of  the  majority  of  the 
voters  of  the  party.  It  prevents  the  possibility  of  a  man  represent- 
ing the  principles  of  only  one-fourth  of  the  voting  strength  of  the 
party  being  nominated  as  the  candidate  of  the  party,  and  in  direct 
conflict  with  the  views  of  three-fourths  of  the  voters  of  the  party. 
It  was  the  recognition  of  this  principle  that  caused  the  conventions 
to  nominate  by  majority  vote  of  the  delegates  instead  of  by  plural- 
ity. The  present  Wisconsin  primary  law  prevents  a  number  of 
candidates  representing  the  majority  sentiment  as  to  party  prin- 
ciples from  coming  into  the  field  as  candidates  for  the  nomination 
for  fear  the  candidate  of  a  minority  may  be  named  by  receiving 
a  higher  vote  than  any  one  candidate  among  the  majority  candi- 
dates. The  present  primary  is,  in  effect,  a  convention  to  which 
every  voter  is  a  delegate  and  in  which  the  candidate  receiving  the 
most  votes  on  the  first  ballot  is  the  nominee.  The  remedy  lies 
either  in  the  adoption  of  the  second  choice  amendment  ...  or 
by  return  to  the  convention  system. 

"  An  effort  has  been  made  to  make  it  appear  that  the  second 
choice  system  is  very  complicated.  The  voter  casts  one  vote  for 

BALLOT 


FOR  GOVERNOR 

FIRST  CHOICE 

SECOND  CHOICE 

Adams 

Brown 

X 

Black 

White 

Gray 

X 

ELECTORAL   AND   GOVERNMENTAL   CHANGES 


95 


a  candidate  as  his  first  choice  and  another  for  the  man  whom  he 
would  like  to  see  nominated  if  his  first  choice  cannot  be  nominated. 
So  far  as  the  voter  is  concerned  there  is  no  complication. 

"  Delegates  who  attend  state  conventions  do  not  find  it  compli- 
cated to  vote  for  their  second  choice  after  they  find  that  their  first 
choice  cannot  be  nominated. 

"  A  diagram  of  the  tally  sheet,  and  of  the  checking  and  comput- 
ing blank  will  make  the  second  choice  proposition  clear. 

"  Following,  is  the  official  tally  sheet  upon  which  the  first  and 
second  choice  votes  are  entered,  being  called  off  in  this  case :  '  For 
Governor,  Brown  first,  Gray  second.'  Supposing  the  ballots  of 
one  precinct  have  been  called  off,  the  sheet  shows  as  fol- 
lows :  — 


FOR  GOVERNOR 


OFFICIAL  TALLY  SHEET 


FIRST  CHOICE 

SECOND  CHOICE 
ADAM8               BROWN                 BUCK                 WHITE                     GRAY 

/w  mi  flu  m  w 

tfU  ftlt  M 

*  on 

ADAMS                25 

15 

10 

wwrwnniwnnwmj  HI 

fHJ  tlH  ftH 

IftifHl  tHl  ItH  fty 

in 

BROWN               43 

15 

25 

3 

til   IVJ  ffU  IHi 

tmmim 

1U 

BLACK                20 

15 

5 

nn  IHI  m  au  at  an  at  tw  &  i* 
im 

tH/  // 

iHinu 

mtMHtU  n» 

ItUltl 

tHl  III 

WHITE                55 

7 

10 

30 

8 

im  to  IHI  u 

w  MINI 

II 

GRAY                   17 

15 

% 

"  Carried  down  the  first  choice  vote,  or  first  ballot  of  the  '  con- 
vention '  is  as  follows :  — 


96  THE   WISCONSIN  IDEA 

Adams 25 

Brown 43 

Black 20 

White 55 

Gray 17 

"  There  being  no  majority  on  the  count  of  first  choice  votes  cast, 
and  Gray  being  the  lowest  man,  he  is  beaten  and  out  of  the  race, 
so  those  who  voted  for  Gray  are  entitled  to  have  their  votes 
counted  for  their  second  choice,  making  the  result  as  follows :  — 

Adams 25 

Brown 43     1 5     5§ 

Black 20 

White 55      2     57 

"  Black  is  now  the  low  man,  and  the  men  who  voted  for  him  as 
their  first  choice  are  entitled  to  have  their  second  choice  votes 
counted  for  their  second  choice.  Repeated  as  above  brings  the 
following  result :  — 

Adams 25 

Brown 58     15     73 

White 57      5    62 

"  There  are  now  only  Brown,  White  and  Adams  left,  and  Adams, 
being  defeated  and  low  man,  his  adherents  are  entitled  to  express 
a  second  choice  and  their  votes  are  counted,  making  the  final  result 
as  follows :  — 

Brown 73      o    73 

White 62     10    72 

"  It  will  be  seen  by  studying  the  above  table  that  Brown  made 
no  gain  on  the  final  '  ballot '  for  the  reason  that  none  of  the 


ELECTORAL  AND   GOVERNMENTAL   CHANGES  97 

25  voters  who  voted  for  Adams  for  first  choice  voted  for  Brown 
for  second  choice.  Ten  of  them,  however,  voted  for  White  as  their 
second  choice,  while  15  of  them  voted  for  Black  as  their  second 
choice.  These  1 5  second  choice  votes  are  not  counted  for  the  reason 
that  they  were  being  counted  for  Adams  while  he  was  still  in  the 
race,  and,  before  Adams  was  out  of  the  race,  Black  was  out  of  it. 
These  voters  simply  voted  for  two  losers.  This  explains  why,  in 
the  above  showing  between  Brown  and  White  their  total  vote  is  only 
145,  while  there  were  160  votes  cast  in  all.  But  15  of  these  votes 
were  cast  for  Adams  and  Black,  both  of  whom  were  low  men  — 
two  losers. 

"  This  system  does  not  always  insure  a  majority  of  all  votes  cast 
but  it  does  insure  the  nomination  of  a  candidate  who  represents 
the  majority  sentiment  of  the  party  as  regards  party  principles. 
Let  us  illustrate  by  showing  what  can  happen  under  the  present 
law,  where  a  first  choice  alone  counts  and  the  high  man  is  nomi- 
nated, all  of  the  rest  being  '  eliminated.'  To  begin  with,  re- 
member that  the  present  primary  is,  in  effect,  a  party  convention 
to  which  all  party  voters  are  delegates  entitled  to  one  vote  on  the 
only  '  roll  call '  allowed.  The  man  who  receives  the  highest  vote 
on  this  '  first  ballot '  (the  primary  vote)  is  the  nominee  of  the 
party. 

"  Let  us  suppose  there  were  three  tariff  reform  republican  candi- 
dates and  one  stand-pat  republican  candidate  in  a  congressional 
district  .  .  .  and  3000  stand-pat  republicans.  At  the  primary 
the  result  could  reasonably  be  supposed  to  be  as  follows :  — 

A  —  Stand-pat  candidate 3000 

B  —  Tariff  reform  candidate 2500 

C  —  Tariff  reform  candidate   ......  2500 

D  —  Tariff  reform  candidate 2000 

H 


98  THE   WISCONSIN   IDEA 

"  By  this  result,  which  is  the  present  system  of  the  highest  candi- 
date being  the  nominee,  the  stand-pat  republican  would  become 
the  nominee  of  the  7000  voters  absolutely  opposed  to  the  policy 
advocated  by  him.  Could  anything  be  more  absurd  than  this? 

"  Now  let  us  use  this  same  case  and  apply  the  second  choice  rule 
by  which  the  lowest  candidate  is  '  eliminated  '  and  not  all  but 
the  highest  '  eliminated  '  which  is  the  present  primary  law. 

"  The  first  count  of  first  choice  votes  would  be  as  above  given. 

"  Each  voter  having  expressed  a  second  choice,  and  D,  one  of  the 
tariff  reform  candidates,  being  the  low  man,  he  would  be  out  of 
the  race,  so  the  voters  who  voted  for  him  for  first  choice  would 
be  entitled  to  have  their  second  choice  votes  counted.  Now, 
would  they  not  be  sure  to  be  divided  between  the  two  other  tariff 
reform  candidates  —  men  who  represented  their  views  on  party 
policy?  Suppose  they  had  divided,  1500  of  these  having  been 
cast  for  B  as  their  second  choice,  and  500  for  C.  The  final  result 
would  be :  — 

A  —  Stand-pat  republican 3000 

B  —  Tariff  reform  republican 4000 

C  —  Tariff  reform  republican 3000 

"  B  would  accordingly  be  the  candidate  representing  the  views  of 
7000  voters,  instead  of  A  representing  the  tariff  policy  of  only  3000 
voters." 

Mr.  Lush  holds  that  a  primary  law  without  a  second 
choice  simply  fosters  the  power  of  the  boss.  He  says : 

"  This  boss,  be  his  leadership  for  good  or  for  evil,  has  the  power 
to  place  candidates  early  in  the  field,  and  then  warn  other  men  not 
to  become  candidates  on  the  unassailable  ground  that  a  number  of 
candidates  of  the  majority  faction  might  split  the  vote  and  allow 


ELECTORAL   AND   GOVERNMENTAL   CHANGES  99 

the  solitary  candidate  of  the  minority  to  be  chosen  as  the  party 
nominee.  By  thus  naming  the  candidate  of  the  majority  faction 
of  the  dominant  party  the  boss  is  '  all  potential.' "  Under  the 
second  choice  law  he  holds  that (( the  leader  of  the  majority  faction 
would  have  had  no  such  power,  for  several  men  of  known  loyalty  to 
the  principles  of  the  majority  faction  could  be  candidates,  secure 
in  the  knowledge  that  those  who  voted  for  them  as  a  first  choice 
would  give  their  second  choice  to  some  candidate  representing  the 
same  principles  and  advocating  the  same  line  of  legislation,  thus 
precluding  the  nomination  of  the  minority  candidate.  The  boss 
or  leader  might  still  properly  give  his  support  to  some  one  of  the 
candidates,  but  it  would  be  plainly  a  matter  of  personal  preference* 
and  not  justified  on  the  ground  of  safeguarding  the  rights  of  the 
majority  to  name  the  candidate  of  the  party." 

Under  the  primary,  without  the  second  choice  he 
holds  that:— 

"  It  is  necessary  that  the  '  boss/  or  leader,  should  '  eliminate  » 
the  candidates  of  the  majority  before  the  primaries  are  held,  other- 
wise the  candidate  of  the  minority  would  be  the  nominee  of  the 
party.  Under  the  second  choice  feature  .  .  .  the  voters  do  this 
*  eliminating  '  at  the  primaries.  Until  this  opportunity  of  selection 
is  placed  in  the  hands  of  the  people  there  can  be  no  true  represent- 
ative government." 

No  election  has  yet  been  held  under  the  law.  Its 
opponents  have  shown  many  diagrams  to  the  effect  that 
it  will  produce  quite  the  opposite  effect  from  that  in- 
tended. In  a  newspaper  election  held  by  a  Milwaukee 
paper  the  voters  seemed  loathe  to  use  the  second  choice 


100  THE   WISCONSIN  IDEA 

at  all.  The  opponents  of  the  law  claim  that  it  cannot 
be  understood  by  the  average  voter,  that  it  will  cause 
all  kinds  of  mistakes  and  will  require  a  long  time  to 
tabulate  results.  Its  supporters  admit  this  last  con- 
tention but  maintain  that  it  is  not  serious  and  that  the 
tally  sheets  inserted  in  the  law  will  make  it  easily  and 
correctly  counted  by  men  of  fair  intelligence. 

There  was  added  to  the  primary  at  the  1911  session, 
a  presidential  preference  law  (chapter  300,  laws  of  1911). 

"  Section  11-26.  Names  of  candidates  for  president  and  vice- 
president  may  be  placed  on  ballot.  6.  For  the  purpose  of 
enabling  every  voter  to  express  his  choice  for  the  nomination  of 
candidates  for  president  and  vice-president  of  the  United  States, 
whenever  there  shall  be  filed  with  the  secretary  of  state  a  petition 
as  provided  by  section  30  of  the  statutes,  the  names  of  such  can- 
didates shall  be  certified  to  the  county  clerks,  and  shall  be  printed 
upon  the  official  party  ticket  used  at  said  election.  No  signature, 
statement,  or  consent  shall  be  required  to  be  filed  by  any  such 
candidate." 

Corrupt  Practices 

Before  the  law  of  1911  was  passed,  Wisconsin  had  no 
limitation  on  corrupt  practices  except  stringent  laws  as 
to  bribery  and  contribution  of  campaign  funds  by  cor- 
porations. It  cannot  be  said  however,  that  it  was  not 
without  defences  from  corruption.  From  the  moment 
the  publicity  features  of  the  railroad  commission  and 


ELECTORAL   AND   GOVERNMENTAL"  CHANGES        IOI 

public  utility  acts  went  into  effect,  a  greater  caution 
became  necessary  in  the  expenditure  of  large  sums 
influencing  the  elections. 

Corrupt  practice  acts  have  been  passed  in  many 
states  and  have  long  been  in  force  in  England.  There 
are  some  things  however,  in  the  Wisconsin  act  deserving 
special  attention.  The  act  is  remarkable,  not  only  for 
its  restrictive  feature  —  that  feature  is  found  in  many 
acts  —  but  for  its  relation  to  other  Wisconsin  legislation. 
It  was  constructed  not  only  with  the  thought  of  restrict- 
ing the  use  of  money  but  also  with  the  idea,  so  often 
used  in  Wisconsin  acts,  of  insuring  equality  of  oppor- 
tunity. Taking  the  Oregon  scheme  of  using  a  pam- 
phlet to  get  the  candidates'  platforms  before  the  public 
as  a  basis,  it  has  developed  a  law  with  a  certain  philoso- 
phy underlying  it.  That  philosophy  may  be  outlined  as 
follows:  there  should  be  equality  of  opportunity  in 
running  for  or  in  holding  office ;  if  this  is  denied,  there 
arises  a  governing  class  able  to  control  election  to  office 
through  money  expended,  and  there  remains  a  large 
class  which  is  seldom  represented  among  candidates  for 
office.  It  is  the  duty  of  the  state,  therefore,  to  equalize 
these  conditions  by  not  only  restricting  the  amount  of 
money  which  can  be  spent  by  the  man  of  wealth  but 
also  to  equalize  conditions  still  further  by  putting  means 
into  the  hands  of  the  poorer  man,  whereby  his  ideas 
may  be  placed  before  the  whole  people. 


102  THE   WISCONSIN   IDEA 

In  the  words  of  Senator  A.  W.  Sanborn,  a  member  of 
the  Wisconsin  senate  for  many  years :  — 

"  The  use  of  money  as  a  factor,  in  determining  the  qualifications 
of  a  man  to  hold  a  public  office,  is  fundamentally  wrong. 

"  It  is  necessary  for  each  voter  to  have  sufficient  information, 
in  order  for  him  to  determine  intelligently  to  whom  his  support 
shall  be  given. 

"  What  information  is  necessary? 

"  How  shall  this  information  be  furnished? 

"  Each  voter  should  know  who  the  candidate  is,  for  what  prin- 
ciples he  stands,  and  what  his  record  has  been. 

"  This  information  should  be  furnished  and  placed  in  the  hands 
of  each  voter  at  public  expense. 

"  The  reason  for  this  is  that  our  government  is  not  based  upon 
property  qualifications  for  voting  or  holding  office.  It  is  based 
upon  manhood  suffrage;  equality  before  the  law;  equality  in 
opportunity;  equality  in  voting  power.  The  elector  is  selecting 
a  public  servant  to  perform  public  duties,  and  if  the  elector  makes 
a  mistake  in  this  selection,  he  must  bear  the  burden.  It  is  a  public 
duty  he  is  performing,  and  the  entire  commonwealth  is  interested 
in  having  each  elector  receive  sufficient  information  to  perform 
that  duty  intelligently  and  well. 

"  The  qualifications  of  two  men  being  equal,  the  power  of  one 
with  a  large  amount  of  money  to  spend,  should  be  no  greater,  in 
securing  votes,  than  the  one  without  money.  The  amount  of 
money  the  one  has  to  spend  does  not  add  one  iota  to  his  qualifica- 
tions to  hold  that  office. 

"  Wherein  lies  the  power  of  the  man  with  money  ?  He  can 
bribe.  He  can  influence  votes  with  money.  He  can  buy  news- 
papers. He  can  indirectly  buy  the  editorial  columns  of  news- 
papers for  the  campaign.  He  can  hire  a  large  number  of  people 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         103 

to  work  for  him,  which  implies  that  they  will  vote  for  him  for  the 
same  consideration.  He  can  prevent  others  from  being  candi- 
dates for  the  same  office.  He  can  hire  others  to  become  candi- 
dates in  aid  of  his  candidacy.  He  can  make  himself  feared  and 
dreaded  by  the  force  of  power  his  money  gives  him.  He  can  prac- 
tically purchase  the  office. 

"  He  does  not  aid  the  elector  in  any  manner  in  determining  the 
qualifications  of  the  candidates ;  his  purpose  is  the  opposite. 

"  The  state  is  interested  in  securing  the  services  of  the  man  who 
is  best  qualified  to  hold  the  office,  not  the  man  who  alone  has  the 
most  money. 

"  If  the  best  qualified  man  is  poor  and  unable  to  place  in  the 
hands  of  the  voters  the  necessary  information,  he  cannot  be  a  can- 
didate, and  hence  the  state  is  deprived  of  his  services. 

"  How  can  this  be  remedied? 

"First,  Deprive  the  rich  man  of  some  of  his  powers ;  do  away 
with  his  property  qualifications  as  far  as  possible ;  make  him  stand 
on  his  real  qualifications  for  the  office. 

"  Second,  Let  the  state  aid  the  man  who  has  no  money  to  assert 
the  power  he  should  have  to  give  him  equality  in  opportunity. 

"  In  other  words,  let  the  state  regulate  the  power  of  the  rich 
man,  by  depriving  him  of  the  right  to  use  his  money  in  securing 
office,  and  aid  the  poor  man  so  as  to  place  them  as  nearly  as  pos- 
sible on  an  equality.  .  .  . 

"  The  law  should  name  the  particular  purposes  for  which  any 
money  can  be  used,  such  as  personal  travelling  expenses,  postage 
for  personal  letters ;  and  prohibit  all  uses  of  money  for  any  other 
purpose. 

"  Further  limit  the  entire  amount  so  it  shall  not  exceed,  under 
any  circumstances,  twenty-five  per  cent  of  one  year's  salary  of  the 
office  for  which  the  person  is  a  candidate. 

"  This  will  tend  to  give  all  an  equal  opportunity.    It  will,  at 


IO4  THE   WISCONSIN   IDEA 

least,  enlarge  the  class  from  which  the  public  servants  may  be 
selected,  and  not  limit  it  to  persons  of  very  large  wealth  only." 

The  following  are  the  purposes  for  which  money  may 
be  expended :  — 

"  Disbursements  authorized  by  candidates.  Section  94-6.  i.  No 
candidate  shall  make  any  disbursement  for  political  purposes 
except:  — 

"  (i)  For  his  own  personal  hotel  and  travelling  expenses  and  for 
postage,  telegraph  and  telephone  expenses. 

"  (2)  For  payments  which  he  may  make  to  the  state  pursuant 
to  law. 

"  (3)  For  contributions  to  his  duly  registered  personal  cam- 
paign committee. 

"  (4)  For  contributions  to  his  party  committee. 

"  (5)  For  the  purposes  enumerated  in  section  94-7  of  the 
statutes,  when  such  candidate  has  no  personal  campaign  committee 
but  not  otherwise. 

"2.  After  the  primary,  no  candidate  for  election  to  the  United 
States  senate  shall  make  any  disbursement  in  behalf  of  his  candi- 
dacy, except  contributions  to  his  party  committees,  for  his  own 
actually  necessary  personal  travelling  expenses,  and  for  postage, 
telephone  and  telegraph  expenses,  and  for  payments  which  he  may 
make  to  the  state  pursuant  to  law  (ipn  c.  650). 

"  Disbursements  authorized  by  committees.  Section  94-7.  No 
party  committee  nor  personal  campaign  committee  shall  make 
any  disbursement  except :  — 

"  (i)  For  maintenance  of  headquarters  and  for  hall  rentals,  in- 
cident to  the  holding  of  public  meetings. 

"  (2)  For  necessary  stationery,  postage  and  clerical  assistance 
to  be  employed  for  the  candidate  at  his  headquarters  or  at  the 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         105 

headquarters  of  the  personal  campaign  committee,  incident  to  the 
writing,  addressing  and  mailing  of  letters  and  campaign  literature. 

"  (3)  For  necessary  expenses,  incident  to  the  furnishing  and 
printing  of  badges,  banners  and  other  insignia,  to  the  printing  and 
posting  of  handbills,  posters,  lithographs,  and  other  campaign  lit- 
erature, and  the  distribution  thereof  through  the  mails  or  other- 
wise. 

"  (4)  For  campaign  advertising  in  newspapers,  periodicals  or 
magazines,  as  provided  in  this  act. 

"  (5)  For  wages  and  actual  necessary  personal  expenses  of  pub- 
lic speakers. 

"  (6)  For  travelling  expenses  of  members  of  party  committees 
or  personal  campaign  committees  (1911  c.  650)" 

The  following  are  the  limitations  of  the  expenses  of 
candidates :  — 

"  Disbursements  by  candidates:  amount  limited.  Section  94-28. 
i.  No  disbursement  shall  be  made  and  no  obligation,  express 
or  implied,  to  make  such  disbursement,  shall  be  incurred  by  or 
on  behalf  of  any  candidate  for  any  office  under  the  constitu- 
tion or  laws  of  this  state,  or  under  the  ordinance  of  any  town  or 
municipality  of  this  state  in  his  campaign  for  nomination  or  elec- 
tion, which  shall  be  in  the  aggregate  in  excess  of  the  amounts 
herein  specified,  namely :  — 

"  (i)  For  United  States  senator,  seven  thousand  five  hundred 
dollars. 

"  (2)  For  representative  in  congress,  two  thousand  five  hundred 
dollars. 

"  (3)  For  governor,  judge  of  the  supreme  court  or  state  super- 
intendent of  schools,  five  thousand  dollars. 

"  (4)  For  other  state  officers,  two  thousand  dollars. 


106  THE   WISCONSIN  IDEA 

"  (5)  For  state  senator,  four  hundred  dollars. 

"  (6)  For  member  of  assembly,  one  hundred  fifty  dollars. 

"  (7)  For  presidential  elector  at  large,  five  hundred  dollars,  and 
for  presidential  elector  for  any  congressional  district,  one  hundred 
dollars. 

"  (8)  For  any  county,  city,  village  or  town  officer,  for  any  judge 
or  for  any  officer  not  hereinbefore  mentioned,  who,  if  nominated 
and  elected,  would  receive  a  salary,  a  sum  not  exceeding  one-third 
of  the  salary  to  which  such  person  would,  if  elected,  be  entitled 
during  the  first  year  of  his  incumbency  of  such  office.  If  such  per- 
son, when*nominated  and  elected,  would  not  receive  a  salary,  a  sum 
not  exceeding  one-third  of  the  compensation  which  his  predecessor 
received  during  the  first  year  of  such  predecessor's  incumbency. 
If  such  officer,  when  nominated  and  elected,  would  not  receive  a 
salary  and  if  such  officer  had  no  predecessor,  and  in  all  cases  not 
specifically  provided  for,  twenty-five  dollars  and  no  more." 

The  most  daring  and  experimental  feature  of  the 
whole  law,  which  has  found  no  place  elsewhere,  is  the 
procedure  for  prosecutions  of  offenders.  This  is  again 
based  upon  a  concept  already  familiar  to  readers  of  this 
book.  It  strives  to  give  the  man  who  has  no  money  a 
chance  to  stand  in  the  court  against  a  wealthy  and 
corrupt  man.  In  arriving  at  this  procedure  every  kind 
of  device  was  used  to  constitute  some  tribunal  outside 
the  courts  to  care  for  these  cases.  The  attempts  made 
by  other  states  to  establish  a  special  tribunal  for  such 
cases  have  either  been  declared  unconstitutional  or 
would  clearly  be  so  under  the  Wisconsin  constitution. 


ELECTORAL  AND   GOVERNMENTAL  CHANGES         107 

Comparatively  few  prosecutions  have  taken  place 
under  corrupt  practice  acts  in  this  country  and  there 
are  few  practical  laws  which  give  equality  in  the  long 
litigation  of  such  cases.  This  procedure  is  an  honest 
attempt  to  provide  for  prosecution  quickly  and  effec- 
tively. There  are  those  who  doubt  the  wisdom  of  it 
and  believe  that  this  law  has  gone  too  far  in  this  direc- 
tion. It  provides  for  investigation  in  a  rudimentary 
way,  suggestive  of  the  investigations  authorized  by  any 
of  the  regulative  laws  of  this  state.  It  specifies  also 
that  the  state  may  supply  special  counsel  so  that  the 
state  and  not  the  aggrieved  individual  says  to  the  per- 
son who  is  in  apparent  error,  "We  are  going  to  investi- 
gate this.  If  we  find  sufficient  cause  we  are  going  to 
prosecute  you  however  many  times  you  may  appeal  and 
however  far  it  may  be  necessary  to  go  in  order  to  punish 
you  and  purify  our  elections." 

The  procedure  is  appended  at  some  length  because  of 
its  original  character  and  experimental  nature.  The 
leaders  are  seeking  and  inviting  criticisms  of  it. 

"  Prosecutions,  proceedings  by  electors.  Section  94-30.  i.  If 
any  elector  of  the  state  shall  have  within  his  possession  informa- 
tion that  any  provision  of  sections  94-1  to  94-38,  inclusive,  of 
the  statutes,  has  been  violated  by  any  candidate  for  which  such 
elector  had  the  right  to  vote,  or  by  any  personal  campaign  com- 
mittee of  such  candidate,  or  any  member  thereof,  he  may,  by 
verified  petition  apply  to  the  county  judge  of  the  county  in  which 


108  THE   WISCONSIN   IDEA 

such  violation  has  occurred,  to  the  attorney-general  of  the  state, 
or  to  the  governor  of  the  state,  for  leave  to  bring  a  special  proceed- 
ing to  investigate  and  determine  whether  or  not  there  has  been 
such  violation  by  such  candidate  or  by  such  committee  or  member 
thereof,  and  for  appointment  of  special  counsel  to  conduct  such 
proceeding  in  behalf  of  the  state. 

"  Leave  to  bring  action.  2.  If  it  shall  appear  from  such  petition 
or  otherwise  that  such  candidate,  committee  or  member  thereof 
has  violated  any  provision  of  this  act,  and  that  sufficient  evidence 
is  obtainable  to  show  that  there  is  probable  cause  to  believe  that 
such  proceeding  may  be  successfully  maintained,  then  such  judge 
or  attorney-general  or  governor,  as  the  case  may  be,  shall  grant 
leave  to  bring  such  proceeding  and  shall  appoint  special  counsel  to 
conduct  such  proceeding. 

"  Special  proceedings.  3.  If  such  leave  be  granted  and  such 
counsel  appointed  such  elector  may,  by  a  special  proceeding  brought 
in  the  circuit  court  in  the  name  of  the  state,  upon  the  relation  of 
such  elector,  investigate  and  determine  whether  or  not  such  candi- 
date, committee  or  member  thereof,  has  violated  any  provision 
of  this  act,  but  nothing  contained  in  this  act  shall  be  considered 
as  in  any  way  limiting  the  effect  or  preventing  the  operation  of 
remedies  now  in  existence  in  such  cases. 

"  Summons  and  complaint;  service.  Section  94-31.  i.  In  such 
proceeding  the  complaint  shall  be  served  with  the  summons,  and 
shall  set  forth  the  name  of  the  person  whose  election  is  contested, 
and  the  grounds  of  the  contest  in  detail,  and  shall  not  thereafter  be 
amended  except  by  leave  of  the  court.  The  summons  and  complaint 
in  the  proceeding  shall  be  filed:.within  five  days  after  service  thereof. 

"  Answer.  2.  The  answer  to  the  complaint  shall  be  served  and 
filed  within  ten  days  after  the  service  of  the  summons  and  com- 
plaint. Any  allegation  of  new  matter  in  the  answer  shall  be 


ELECTORAL  AND   GOVERNMENTAL   CHANGES         IOQ 

deemed  controverted  by  the  adverse  party  without  reply,  and 
thereupon  said  proceeding  shall  be  at  issue  and  stand  ready  for 
trial  upon  five  days'  notice  of  trial. 

"Trial;  precedence;  without  jury.  3.  All  such  proceedings 
shall  have  precedence  over  any  civil  cause  of  a  different  nature 
pending  in  such  court,  and  the  court  shall  always  be  deemed  open 
for  the  trial  thereof,  in  or  out  of  term,  and  the  same  shall  be  tried 
and  determined  the  same  as  are  civil  actions,  but  the  court  shall 
without  a  jury  determine  all  issues  of  fact  as  well  as  issues  of  law. 

"  Consolidation  of  proceedings.  4.  If  more  than  one  proceed- 
ing is  pending  or  the  election  of  more  than  one  person  is  investi- 
gated and  contested,  the  court  may,  in  its  discretion,  order  the 
proceedings  consolidated  and  heard  together  and  may  equitably 
apportion  costs  and  disbursements. 

"  Depositions.  5.  The  parties  to  such  proceedings  may  invoke 
the  provisions  of  sections  4068  and  4096  of  the  statutes,  but  two 
days'  notice  of  the  taking  of  the  deposition  of  any  witness  shall  be 
sufficient  notice  thereof. 

"  Change  of  -venue.  6.  In  all  such  proceedings  either  party 
shall  have  the  right  of  change  of  venue,  as  provided  by  law  in  civil 
actions,  but  application  for  such  change  must  be  made  within  five 
days  after  service  of  summons  and  complaint,  and  the  order  for 
such  change  shall  be  made  within  three  days  after  the  making  of 
such  application  and  the  papers  transmitted  forthwith,  and  any 
neglect  of  the  moving  party  to  procure  such  transmission  within 
such  time  shall  be  a  waiver  of  his  right  to  such  change  of  venue. 

"  Judgment:  costs.  7.  If  judgment  is  in  favor  of  the  plaintiff 
the  relator  may  recover  his  taxable  costs  and  disbursements  against 
the  person  whose  right  to  the  office  is  contested,  but  no  judgment 
for  costs  shall  be  awarded  against  the  relator,  unless  it  shall  ap- 
pear that  such  proceeding  has  been  instituted  otherwise  than  in 


IIO  THE    WISCONSIN   IDEA 

good  faith.  All  costs  and  disbursements  in  such  cases  shall  be  in 
the  discretion  of  the  court. 

"  Judgment  of  ouster;  disqualification;  filling  vacancy.  Sec- 
tion 94-32.  i.  If  the  court  shall  find  that  the  candidate  whose 
right  to  any  office  is  being  investigated,  or  his  personal  campaign 
committee  or  any  member  thereof  has  violated  any  provision  of  this 
act,  in  the  conduct  of  the  campaign  for  nomination  or  election, 
and  if  such  candidate  is  not  one  mentioned  in  subsection  2  hereof, 
judgment  shall  be  entered  declaring  void  the  election  of  such  candi- 
date to  the  office  for  which  he  was  a  candidate,  and  ousting  and 
excluding  him  from  such  office  and  declaring  the  office  vacant. 
The  vacancy  thus  created  shall  be  filled  in  the  manner  provided 
by  law,  but  no  person  found  to  have  violated  any  provision  of  this 
act  shall  be  eligible  to  fill  any  office  or  to  become  a  candidate  for 
any  office,  candidates  for  which  have  been  voted  for  at  the  primary 
or  election  in  connection  with  which  such  violation  occurred. 

"  Congressional  and  legislative  offices;  proceedings.  2.  If  such 
proceeding  has  been  brought  to  investigate  the  right  of  a  can- 
didate for  member  of  the  state  senate  or  state  assembly  or  for 
senator  or  representative  in  congress,  and  the  court  shall  find  that 
such  candidate  or  any  member  of  his  personal  campaign  committee 
has  violated  any  provision  of  this  act,  in  the  conduct  of  the  cam- 
paign for  nomination  or  election,  the  court  shall  draw  its  findings 
to  such  effect  and  shall  forthwith,  without  final  adjudication,  cer- 
tify his  findings  to  the  secretary  of  state,  to  be  by  him  transmitted 
to  the  presiding  officer  of  the  legislative  body,  as  a  member  of 
which  such  person  is  a  candidate. 

"  Appeals;  stay  of  proceedings;  injunction.  3.  Appeals  may 
be  taken  from  the  determination  of  the  court  in  such  proceeding  in 
the  same  manner  as  appeals  may  be  taken  as  provided  by  law  in 
civil  actions,  but  the  party  appealing  shall  in  no  case  be  entitled 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         III 

to  or  obtain  a  stay  of  proceedings.  No  injunction  shall  issue  in 
any  such  proceeding  suspending  or  staying  any  procedure  therein 
or  connected  therewith,  except  upon  application  to  the  court  or 
the  presiding  judge  thereof,  upon  notice  to  all  parties  and  after 
hearing. 

"  No  bar  to  criminal  prosecution.  4.  No  judgment  entered  as 
provided  for  herein  shall  be  any  bar  to  or  affect  in  any  way  any 
criminal  prosecution  of  any  candidate  or  other  person. 

"Special  counsel;  supreme  court.  Section  94-33.  i.  If  the 
judgment  of  the  trial  court  is  appealed  from  in  such  proceeding,  the 
county  judge,  the  attorney-general  or  the  governor,  who  made  the 
appointment  of  special  counsel  for  the  trial  court,  shall  authorize 
such  counsel  so  appointed,  or  some  other  person  to  appear  as  special 
counsel  in  the  supreme  court  in  such  matter. 

"  Compensation.  2.  The  special  counsel  provided  for  by  this 
act  shall  receive  a  reasonable  compensation  for  his  services,  not  to 
exceed,  however,  twenty-five  dollars  per  day  for  the  time  actually 
spent  in  conducting  the  proceedings  in  the  trial  court  or  upon  ap- 
peal, and  not  to  exceed  ten  dollars  per  day  for  the  time  neces- 
sarily expended  in  preparation  therefor.  Such  compensation  shall 
be  audited  by  the  secretary  of  state,  and  paid  out  of  the  state  treas- 
ury upon  a  voucher  and  upon  the  certificate  of  the  officer  appoint- 
ing such  counsel  to  the  effect  that  such  appointment  has  been  duly 
made,  that  the  person  so  appointed  has  faithfully  performed  the 
duties  imposed  upon  him,  and  that  the  number  of  days  stated  in 
such  voucher  have  been  consumed  in  conducting  such  litigation  and 
in  preparation  therefor. 

"  Witnesses;  incriminating  testimony;  penalty;  perjury.  Sec- 
tion 94-34.  No  person  shall  be  excused  from  testifying  in  such 
proceeding,  or  in  any  proceeding  for  violation  of  or  growing  out  of 
the  provisions  of  this  act,  on  the  ground  that  his  testimony  may 


112  THE   WISCONSIN   IDEA 

expose  him  to  prosecution  for  any  crime,  misdemeanor  or  forfeiture. 
But  no  person  shall  be  prosecuted,  or  subjected  to  any  penalty  or 
forfeiture,  except  forfeiture  of  nomination  or  of  election  to  office, 
for  or  on  account  of  any  transaction,  matter,  or  thing  concerning 
which  he  may  testify  or  produce  evidence,  documentary  or  other- 
wise, in  such  proceeding  or  examination,  except  a  prosecution  for 
perjury  committed  in  giving  such  testimony. 

"Expense  accounts;  failure  to  file:  notification.  Section  94-35. 
The  officer  with  whom  the  expense  account  of  any  candidate 
for  public  office  is  required  by  any  law  of  this  state  to  be  filed, 
shall  notify  such  candidate  of  his  failure  to  comply  with  such  law, 
immediately  upon  the  expiration  of  the  time  fixed  by  any  law  of 
this  state  for  the  filing  of  the  same,  and  shall  notify  the  district  at- 
torney of  the  county  where  such  candidate  resides  of  the  fact  of  his 
failure  to  file,  and  said  district  attorney  shall  thereupon  prosecute 
such  candidate. 

"Criminal  actions;  judgment.  Section  94-36.  i.  If  any 
person  shall,  in  a  criminal  action,  be  judged  to  have  been  guilty  of 
any  violation  of  this  act,  while  a  candidate  for  any  office  under  the 
constitution  or  laws  of  this  state,  or  under  any  ordinance  of  any 
town  or  municipality  therein  other  than  the  office  of  state  senator 
or  member  of  the  assembly,  the  court  shall,  after  entering  the  ad- 
judication of  guilty,  enter  a  supplemental  judgment  declaring  such 
person  to  have  forfeited  the  office  in  the  conduct  of  the  campaign 
for  the  nomination  or  election  to  which  he  was  guilty  of  such  vio- 
lation, and  shall  transmit  to  the  filing  officer  of  such  candidate  a 
transcript  of  such  supplemental  judgment,  and  thereupon  such 
office  shall  be  deemed  vacant  and  shall  be  filled  as  provided  by  law. 

"  Personal  campaign  committee;  violation;  judgment.  2.  If 
any  person  shall,  in  a  similar  action,  be  found  guilty  of  any  viola- 
tion of  this  act,  committed  while  he  was  a  member  of  the  personal 


ELECTORAL  AND   GOVERNMENTAL   CHANGES         113 

campaign  committee  of  any  candidate  for  any  such  office,  the  court 
before  which  such  action  is  tried,  shall  immediately  after  entering 
such  adjudication  of  guilty,  enter  a  supplemental  judgment  de- 
claring such  candidate  to  have  forfeited  the  office  in  the  conduct  of 
the  campaign  for  nomination,  or  election,  to  which  such  member 
of  his  personal  campaign  committee  was  guilty  of  such  violation, 
and  shall  transmit  to  the  filing  officer  of  such  candidate  a  transcript 
of  such  supplemental  judgment,  and  thereupon  such  office  shall  be 
deemed  vacant  and  shall  be  filled  as  provided  by  law. 

"  Congressional  and  legislative  candidates;  judgment.  3.  If  any 
person  shall,  in  a  criminal  action,  be  adjudicated  guilty  of  any 
violation  of  this  act,  committed  while  he  was  a  candidate  for  the 
office  of  state  senator,  member  of  the  assembly,  United  States  sena- 
tor or  representative  in  congress,  or  while  he  was  a  member  of  the 
personal  campaign  committee  of  any  such  candidate,  the  court, 
after  entering  such  adjudication  of  guilty,  shall  forthwith  transmit 
to  the  presiding  officer  of  the  legislative  body  as  a  member  of  which 
such  officer  was  a  candidate  when  such  violation  occurred,  a  cer- 
tificate setting  forth  such  adjudication  of  guilty. 

"Criminal  court;  jurisdiction.  4.  Any  court  having  juris- 
diction to  enter  judgment  of  guilty  in  any  such  criminal  action  is 
hereby  vested  with  jurisdiction  to  enter  such  supplemental  judg- 
ment, transmit  a  transcript  thereof  and  issue  a  certificate  as  pro- 
vided in  this  section. 

"Employment  of  counsel  by  candidate.  Section  94-37. 
Nothing  contained  in  this  act  shall  prevent  any  candidate  from 
employing  counsel  to  represent  him  in  any  action  or  proceeding, 
affecting  his  rights  as  a  candidate,  nor  from  paying  all  costs  and 
disbursements  necessarily  incident  thereto.  No  sum  so  paid  or 
incurred  shall  be  deemed  a  part  of  the  campaign  expenses  of  any 
such  candidate. 


114  THE   WISCONSIN   IDEA 

"  Penalty.  Section  94-38.  Any  person  violating  any  pro- 
vision of  sections  94-1  to  94-38,  inclusive,  of  the  statutes,  shall 
upon  conviction  thereof,  be  punished  by  imprisonment  in  the 
county  jail  for  a  period  of  not  less  than  one  month  nor  more  than 
one  year,  or  by  imprisonment  in  the  state  prison  for  a  period  of 
not  less  than  one  year  nor  more  than  three  years,  or  by  a  fine  of  not 
less  than  twenty-five  dollars  nor  more  than  one  thousand  dollars, 
or  by  both  such  fine  and  imprisonment ;  and  no  person  so  convicted 
shall  be  permitted  to  take  or  hold  the  office  to  which  he  was  elected, 
if  any,  or  receive  the  emoluments  thereof. 

"  Appropriation.  Section  94-39.  A  sum  sufficient  to  carry  out 
the  provisions  of  sections  94-1  to  94-39,  inclusive,  of  the  statutes, 
not  to  exceed  the  sum  of  fifteen  thousand  dollars  is  appropriated 
annually  out  of  any  money  hi  the  treasury  not  otherwise  appro- 
priated." 

There  is  another  feature  of  this  act  which  is  novel,  as 
well  as  experimental.  If  candidates  are  limited  as  to 
the  amount  of  money  which  may  be  spent  for  literature 
and  notwithstanding  this  one  man  is  using  a  newspaper 
through  his  financial  interest,  control  or  otherwise, 
equality  before  the  law  is  practically  violated.  It  was 
felt  that  something  should  be  inserted  to  meet  this 
condition  and  the  following  sections  relate  to  this  subject : 

"Newspapers  and  periodicals;  paid  advertisements.  Section 
94-14.  i.  No  publisher  of  a  newspaper  or  other  periodical  shall 
insert,  either  in  the  advertising  column  of  such  newspaper  or 
periodical  or  elsewhere  therein,  any  matter  paid  for  or  to  be  paid 
for  which  is  intended  or  tends  to  influence,  directly  or  indirectly, 
any  voting  at  any  election  or  primary,  unless  at  the  head  of  said 
matter  is  printed  in  pica  capital  letters  the  words  '  Paid  Advertise- 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         115 

ment,'  and  unless  there  is  also  a  statement  at  the  head  of  said 
matter  of  the  amount  paid  or  to  be  paid  therefor,  the  name  and 
address  of  the  candidate  in  whose  behalf  the  matter  is  inserted, 
and  of  any  other  person,  if  any,  authorizing  the  publication,  and 
the  name  of  the  author  thereof. 

"  Persons  financially  interested  in;  statement.  2.  Every  per- 
son occupying  any  office  or  position  under  the  constitution  or  laws 
of  this  state,  or  under  any  ordinance  of  any  town  or  municipality 
herein,  or  under  the  constitution  or  laws  of  the  United  States,  the 
annual  income  of  which  shall  exceed  three  hundred  dollars,  and 
every  candidate,  every  member  of  any  personal  campaign  or  party 
committee,  who  shall  either  in  his  own  name,  or  in  the  name  of 
any  other  person,  own  any  financial  interest  in  any  newspaper  or 
periodical,  circulating  in  part  or  in  whole  in  Wisconsin,  shall,  be- 
fore such  newspaper  or  periodical  shall  print  any  matter  otherwise 
than  as  is  provided  in  subsection  i  hereof,  which  is  intended  or 
tends  to  influence,  directly  or  indirectly,  any  voting  at  any  election 
or  primary  in  this  state,  file  in  the  office  of  the  county  clerk  of  the 
county  in  which  he  resides  a  verified  declaration,  stating  definitely 
the  newspaper  or  periodical  in  which  or  over  which  he  has  such 
financial  interest  or  control,  and  the  exact  nature  and  extent  of 
such  interest  or  control.  The  editor,  manager,  or  other  person  con- 
trolling the  publication  of  any  such  newspaper  or  article,  who  shall 
print  or  cause  to  be  printed  any  such  matter  contrary  to  the  pro- 
visions of  this  act,  prior  to  the  filing  of  such  verified  declaration 
from  every  person  required  by  this  subsection  to  file  such  declara- 
tion, shall  be  deemed  guilty  of  a  violation  hereof. 

"  Newspaper  disbursements  prohibited.  Section  94-15.  No 
owner,  publisher,  editor,  reporter,  agent  or  employee  of  any  news- 
paper or  other  periodical,  shall,  directly  or  indirectly,  solicit, 
receive  or  accept  any  payment,  promise  or  compensation,  nor  shall 


Il6  THE   WISCONSIN  IDEA 

any  person  pay  or  promise  to  pay,  or  in  any  manner  compensate 
any  such  owner,  publisher,  editor,  reporter,  agent,  or  employee,  di- 
rectly or  indirectly,  for  influencing  or  attempting  to  influence 
through  any  printed  matter  in  such  newspaper  any  voting  at  any 
election  or  primary  through  any  means  whatsoever,  except  through 
the  matter  inserted  in  such  newspaper  or  periodical  as  '  paid  ad- 
vertisement,' and  so  designated  as  provided  by  law." 

fj/£       Initiative  and  Referendum 

Statute  law  must  fit  economic  conditions  as  Black- 
stone  says  "like  the  clothes  on  the  body."  It  was 
feared  by  those  who  constructed  the  Wisconsin  initia- 
tive and  referendum  resolution  (jt.  res.  no.  74,  laws  of 
1911)  that  if  the  Oregon  plan  was  adopted,  crude  legis- 
lation, which  would  receive  harsh  criticism  from  the 
courts,  would  result.  Bills,  good  in  concept,  but  poor 
in  technique,  would  result,  it  was  thought,  from  the 
drafting  of  bills  by  groups  in  different  parts  of  the  state. 
Under  the  Oregon  law  these  bills  would  have  to  be  re- 
jected or  incorporated  into  the  statutes  without  the 
change  of  a  word  or  the  dotting  of  an  i.  Bills  submitted 
to  the  people  should  be  so  worded  that  a  yes  or  no  on 
the  part  of  the  voter  is  all  that  is  necessary.  It  was 
felt  that  under  any  other  system  the  voter  might  have 
to  answer  a  question  like  that  put  to  the  man  who  in- 
sisted that  a  public  speaker  answers  questions  asked  him 
by  a  yes  or  no.  The  speaker  asked  him  in  return, 
"  When  did  you  beat  your  wife  last  ?  Answer  yes  or  no." 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         117 

Time  after  time  it  has  been  found  in  the  drafting  of 
Wisconsin's  strongest  laws,  that  they  were  somewhat 
modified  under  the  fire  of  criticisms  made  by  attorneys 
and  experts  appearing  before  the  legislative  committees. 
With  sufficient  expert  help  for  the  legislature  there  is 
little  to  fear  and  much  to  gain  from  strong,  clear  argu- 
ment presented  by  the  opponents  of  a  bill.  The  com- 
mittee may  say  frankly  that  some  kind  of  legislation 
embodying  a  certain  idea  is  going  to  be  reported  and  if 
the  opponents  wish  it  to  be  sane  and  workable  they 
will  give  their  best  help  by  reasonable  criticism.  If 
they  object  to  a  certain  actuarial  computation  made  by 
the  statistical  experts,  the  committee,  upon  being  con- 
vinced, will  correct  it.  The  Wisconsin  railroad  com- 
mission bill,  for  instance,  was  completely  redrafted 
twenty  different  times. 

The  Wisconsin  leaders,  desiring  to  retain  the  advan- 
tages gained  by  subjection  of  bills  to  severe  criticism, 
provided  that  any  bill,  which  has  been  introduced  into 
the  legislature  within  the  first  thirty  days  of  the  session, 
whether  it  has  passed  the  legislature  or  not,  may  be 
called  out  by  petition  and  submitted  to  the  people  at 
the  next  election. 

The  section  relating  to  this  procedure  follows :  — 

"  A  proposed  law  shall  be  recited  in  full  in  the  petition,  and  shall 
consist  of  a  bill  which  has  been  introduced  in  the  legislature  during 
the  first  thirty  legislative  days  of  the  session,  as  so  introduced ;  or, 


Il8  THE   WISCONSIN  IDEA 

at  the  option  of  the  petitioners,  there  may  be  incorporated  in  said 
bill  any  amendment  or  amendments  introduced  in  the  legislature- 
Such  bill  and  amendments  shall  be  referred  to  by  number  hi  the 
petition.  Upon  petition  filed  not  later  than  four  months  before 
the  next  general  election,  such  proposed  law  shall  be  submitted 
to  a  vote  of  the  people,  and  shall  become  a  law  if  it  is  approved  by 
a  majority  of  the  electors  voting  thereon,  and  shall  take  effect  and 
be  in  force  from  and  after  thirty  days  after  the  election  at  which 
it  is  approved." 

The  same  general  procedure  is  applied  to  constitu- 
tional amendments,  save  that  10  per  cent  is  required 
for  an  initiated  constitutional  amendment  which  has 
not  passed  the  legislature  and  5  per  cent  for  a  constitu- 
tional amendment  which  has  passed  one  session  of  the 
legislature ;  whereas  8  per  cent  is  required  for  either  the 
initiative  or  the  referendum  on  ordinary  bills. 

In  order  that  institutions  may  not  be  destroyed  by 
having  their  appropriations  withheld  until  the  results  of 
the  election  have  been  ascertained,  a  state  of  affairs 
which  caused  much  opposition  to  the  Oregon  amend- 
ment, the  following  procedure  on  emergency  bills  has 
been  instituted:  — 

"  An  emergency  law  shall  be  any  law  declared  by  the  legislature 
to  be  necessary  for  any  immediate  purpose  by  a  two-thirds  vote 
of  the  members  of  each  house  voting  thereon,  entered  on  their 
journals  by  the  yeas  and  nays.  No  law  making  any  appropriation 
for  maintaining  the  state  government  or  maintaining  or  aiding  any 
public  institution,  not  exceeding  the  next  previous  appropriation 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         1 19 

for  the  same  purpose,  shall  be  subject  to  rejection  or  repeal  under 
this  section.  The  increase  in  any  such  appropriation  shall  only  take 
effect  as  in  case  of  other  laws,  and  such  increase,  or  any  part  thereof, 
specified  in  the  petition  may  be  referred  to  a  vote  of  the  people 
upon  petition." 

The  criticism  is  made  that  the  Wisconsin  proposal  is 
no  initiative  at  all;  that  if  the  legislator  does  not  wish 
to  introduce  the  bill  he  will  not  do  so.  The  first  answer 
to  this  objection  is  that  it  would  be  an  exceedingly  poor 
bill  whose  author  could  not  find,  among  a  hundred  and 
thirty-three  legislators,  one  who  would  be  willing  to  in- 
troduce it.  Again,  if  a  petition  containing  four  or  five 
thousand  signatures  or  the  number  which  is  required 
under  the  Oregon  petition  demanding  a  bill  is  submitted, 
it  is  practically  impossible  to  keep  it  out  of  the  legisla- 
ture. The  petition  may  be  used  if  necessary  in  getting 
some  member  to  introduce  the  bill.  No  strength  of  the 
Oregon  scheme  is  lost  here.  The  orderly  proceeding  in 
the  legislature  is  retained,  and  in  addition  there  is  an 
elasticity  which  is  not  found  in  the  Oregon  law.  The 
petitioners  who  have  secured  a  legislator  willing  to  father 
the  bill  have  at  their  command,  through  this  legislator, 
the  services  of  the  legislative  reference  department,  with 
its  skilled  draftsmen,  who  will  aid  them  in  the  technical 
construction  of  the  bill  to  be  introduced. 

Nearly  all  initiative  and  referendum  plans  provide 
that  the  legislature  may  send  a  competing  bill  to  the 


120  THE   WISCONSIN  IDEA 

people,  but  the  Wisconsin  plan  precludes  the  legislature 
sending  anything  to  the  people.  The  opinion  is  that 
the  legislature  should  not  be  allowed  to  dodge  its  re- 
sponsibility but  should  be  made  to  state  its  preference 
by  aye  or  no.  It  should  not  be  permitted  to  confuse 
the  situation  by  sending  one  or  more  competing  bills  to 
the  people.  This  clears  the  decks  and  makes  the  issue 
clean  cut.  Suppose  that  a  strong  bill  comes  before  the 
legislature  and  that  body  passes  some  weak  substitute 
for  it;  under  this  plan  the  people  can  do  one  of  two 
things :  they  can  call  for  a  referendum  on  this  weak 
plan  and  kill  it  or  they  can  call  out  some  other  and 
better  bill,  with  whatever  strengthening  amendments  the 
petitioners  may  desire,  and  pass  this  bill,  thus  repealing 
the  first  bill  by  superseding  it.  In  any  case  the  legisla- 
ture cannot  dodge  the  situation ;  it  must  meet  its  obliga- 
tions —  and  the  roll  call  before  the  public. 

After  all,  it  is  not  unlike  the  process  by  which  the 
legislature  delegates  to  committees  the  power  to  con- 
sider bills  and  to  recommend  them.  The  legislature 
should  be  a  convenience,  a  committee  of  the  whole 
people.  If  it  does  not  fulfill  the  will  of  the  whole  people 
for  some  particular  reason,  the  people  should  have  a 
right  to  assert  their  will.  If  a  committee  of  the  legis- 
lature does  not  do  what  the  legislature  desires,  it  over- 
turns the  reports  of  the  committee  on  the  floor  of  the 
house,  modifies  it  or  does  whatever  it  pleases  with  it, 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         121 

so  under  this  resolution,  the  people  will  allow  the  legis- 
lature to  act  upon  the  measures  as  a  matter  of  con- 
venience. If  the  legislature  passes  something  which  the 
people  do  not  want,  they  will  overturn  that  measure  if 
they  so  desire,  or  if  the  legislature  fails  to  pass  some- 
thing which  the  people  do  want,  they  can  remove  it 
from  the  hands  of  the  legislature  and  refuse  to  accept 
the  report  of  the  legislature  upon  the  matter.  We  have 
in  this  joint  resolution  a  new  principle  applied  to  the 
initiative  and  referendum.  It  does  not  contain  the 
" direct  drive"  or  " direct  legislation"  proposition  of  the 
Oregon  law,  but  it  does  contain  that  which  is  fully  as 
strong  and  which  has  some  essential  features  making  the 
whole  proposition  more  harmonious.  It  is  a  strong  aid 
to  representative  government  and  at  the  same  time  a 
vigorous  method  of  directly  expressing  the  popular  will. 
An  organization  which  puts  a  bill  before  the  legislature 
can  take  it  out  just  as  it  was  put  in,  but  it  must  give  a 
public  hearing  for  so  many  months  to  all  parties  in- 
terested. Naturally  if  a  part  of  the  legislature  is  de- 
feated on  some  big  proposition  that  portion  will  say  to 
the  rest,  "We  will  go  out  to  the  people  and  ask  the 
people's  support  upon  this  matter  and  they  will  decide 
between  us." 

The  initiative  and  referendum  plan  herein  described 
has  yet  to  pass  the  1913  legislature  and  be  accepted  by 
the  people  before  it  becomes  a  part  of  the  Wisconsin 


122  THE   WISCONSIN  IDEA 

constitution.  There  has  been  such  a  demand  for  copies 
of  this  resolution  that  it  is  presented  in  full  in  the  Ap- 
pendix. 

The  recall  resolution  is  very  simple  and  does  not  in- 
clude the  judges.  The  legislature  and  the  people  in 
general  are  so  well  satisfied  with  the  Wisconsin  supreme 
court  that  the  legislature  almost  unanimously  opposed 
the  insertion  of  the  recall  of  judges  into  its  resolution. 
The  recall  will  receive  further  consideration  in  a  later 
chapter  dealing  with  the  judiciary. 

The  proposed  recall  amendment  is  as  follows :  — 

"  Section  12.  The  legislature  shall  provide  for  the  removal  by 
recall  from  office,  by  the  qualified  electors  of  the  electoral  district 
in  which  any  officer  is  elected,  of  every  public  officer  in  the  state 
of  Wisconsin  holding  an  elective  office,  except  judicial  officers." 

The  laws  described  in  this  chapter  are  the  principal 
ones  relating  to  reform  in  direct  legislation  and  electoral 
machinery.  Space  forbids  the  description  of  important 
laws  relating  to  registration  in  cities  and  the  betterment 
of  electoral  conditions  in  general.  Wisconsin  does  not 
require  the  senatorial  pledge  nor  any  form  of  statement 
from  legislators  intended  to  insure  the  direct  election  of 
United  States  senators  such  as  has  been  used  in  Oregon. 
It  was  defeated  at  the  1911  session  of  the  legislature  by 
a  narrow  margin  because  of  what  was  apparently  an 
unexpected  return  to  party  lines.  It  undoubtedly  will 


ELECTORAL   AND   GOVERNMENTAL   CHANGES         123 

be  considered  later  as  there  seems  to  be  a  strong  senti- 
ment in  favor  of  it. 

Wisconsin  has  not  the  real  Australian  ballot,  that  is, 
the  ballot  without  the  circle  which  has  been  used  for  a 
long  time  in  Massachusetts  and  Minnesota  and  now  is 
being  very  gradually  adopted  in  other  states.  It  was 
often  recommended  by  Governor  La  Follette  and  at  one 
time  was  defeated  by  a  40  to  40  vote.  The  Social- 
Democratic  party,  which  is  represented  by  fourteen 
members  in  the  legislature,  are  greatly  opposed  to  this 
form  of  ballot.  This  organization  believes  in  working 
strictly  through  party  lines,  in  making  a  program  and 
remaining  true  to  it  regardless  of  individuals.  To  re- 
move the  circle  from  the  ballot  would  be  striking  at  the 
very  fundamentals  of  this  party.  The  tide  has  always 
been  turned  against  an  Australian  ballot  bill  by  the 
Socialist  vote  and  proposed  bills  for  non-partisan  elec- 
tions in  cities  have  suffered  like  defeat.  A  fierce  struggle 
for  the  enactment  of  this  last  named  measure  is  already 
presaged  for  the  1913  legislature. 

The  electoral  machinery  is  not  perfect,  but  the  above 
is  a  brief  statement  of  its  underlying  principles  and  of 
what  has  been  accomplished  thus  far  for  its  improvement. 


CHAPTER  V 

EDUCATIONAL  LEGISLATION 

SAYS  that  great  student  of  Western  history,  Professor 
Frederick  J.  Turner,  formerly  of  Wisconsin,  now  of 
Harvard  University:  — 

"  Nothing  in  our  educational  history  is  more  striking  than  the 
steady  pressure  of  democracy  upon  its  universities  to  adapt  them 
to  the  requirements  of  all  the  people.  From  the  State  Universities 
of  the  Middle  West,  shaped  under  pioneer  ideals,  have  come  the 
fuller  recognition  of  scientific  studies,  and  especially  those  of  ap- 
plied science  devoted  to  the  conquest  of  nature ;  the  breaking  down 
of  the  traditional  required  curriculum ;  the  union  of  vocational  and 
college  work  in  the  same  institution ;  the  development  of  agricul- 
tural and  engineering  colleges  and  business  courses ;  the  training 
of  lawyers,  administrators,  public  men,  and  journalists  —  all  under 
the  ideal  of  service  to  democracy  rather  than  of  individual  advance- 
ment alone.  Other  universities  do  the  same  things ;  but  the  head 
springs  and  the  main  current  of  this  great  stream  of  tendency  come 
from  the  land  of  the  pioneers,  the  democratic  states  of  the  Middle 
West.  And  the  people  themselves,  through  their  boards  of  trustees 
and  the  legislature,  are  in  the  last  resort  the  court  of  appeal  as  to 
the  directions  and  conditions  of  growth  .  .  .  have  the  fountain  of 
income  from  which  these  universities  derive  their  existence.  .  .  . 

"  In  the  transitional  conditions  of  American  democracy  .  .  . 
the  mission  of  the  University  is  most  important.  The  times  call 
for  educated  leaders.  General  experience  and  rule-of -thumb  in- 

124 


EDUCATIONAL   LEGISLATION  12$ 

formation  are  inadequate  for  the  solution  of  the  problems  of  a 
democracy  which  no  longer  owns  the  safety  fund  of  an  unlimited 
quantity  of  untouched  resources.  Scientific  farming  must  increase 
the  yield  of  the  soil,  scientific  forestry  must  economize  the  wood- 
lands, scientific  experiment  and  construction  by  chemist,  physicist, 
biologist  and  engineer  must  be  applied  to  all  of  nature's  forces  in 
our  complex  modern  society.  The  test  tube  and  the  microscope 
are  needed  rather  than  axe  and  rifle  in  this  new  ideal  of  conquest. 
The  very  discoveries  of  science  in  such  fields  as  public  health  and 
manufacturing  processes  have  made  it  necessary  to  depend  upon 
the  expert,  and  if  the  ranks  of  experts  are  to  be  recruited  broadly 
from  the  democratic  masses  as  well  as  from  those  of  larger  means, 
the  State  Universities  must  furnish  at  least  as  liberal  opportunities 
for  research  and  training  as  the  universities  based  on  private  en- 
dowments furnish.  It  needs  no  argument  to  show  that  it  is  not 
to  the  advantage  of  democracy  to  give  over  the  training  of  the 
expert  exclusively  to  privately  endowed  institutions." 

The  people  of  Wisconsin  have  demanded  this  effi- 
ciency and  the  University  of  Wisconsin  has  been  noted 
not  only  for  the  philosophy  of  service  to  the  state  which 
has  been  maintained  but  for  the  practical  courses  which 
deal  with  every  factor  in  the  life  of  the  state.  That 
Wisconsin  has  changed  from  a  wheat-growing  state  to  a 
great  dairy  state  has  been  due  largely  to  the  fact  that 
the  agricultural  " short  course"  in  the  University  of 
Wisconsin,  which  has  been  so  popular  in  the  past,  has 
turned  out  real  farmers  and  real  dairymen.  In  1905, 
the  University  of  Wisconsin  was  placed  upon  a  per- 
manent mill  tax  basis.  Its  appropriations  are  now  con- 


126  THE   WISCONSIN   IDEA 

tinuing,  so  that  it  can  lay  plans  for  the  future  with  a 
certain  hope  of  maintenance.  This  does  not  mean  that 
the  legislature  cannot  modify  the  plans  of  the  university 
at  any  time,  but  it  does  mean  established  continuity/ 
The  wisdom  of  this  is  shown  by  the  fact  that  some  of  the 
universities  and  educational  institutions  of  the  country 
have  been  in  a  turmoil  of  strife  because  under  the  so- 
called  budget  system  their  appropriations  end  every 
two  years.  They  are  helpless  under  the  attacks  of 
politicians  and  have  no  way  to  plan  ahead.  Freedom' 
of  speech  in  the  university  might  have  been  seriously 
impaired  recently  had  a  minority  of  the  legislature  had 
the  power  to  withhold  appropriations  for  the  university. 
It  is  evident  that,  if  the  legislature  every  two  years 
passes  upon  the  entire  appropriation  for  an  existing  in- 
stitution, a  small  minority  of  one  house  is  able  to  threaten 
or  block  an  institution  so  that  it  cannot  extend  to  its 
fullest  usefulness. 

The  college  of  agriculture  in  Wisconsin  has  been  main- 
tained as  a  part  of  the  university,  and  although  the 
state  in  its  early  days  wasted  its  public  lands  reserved 
for  educational  institutions  in  a  reckless  manner,  the 
state  has  been  generous  and  cheerfully  borne  the  burden 
of  paying  for  a  university.  During  the  session  of  1911 
the  normal  schools  also  were  placed  upon  a  mill  tax 
basis,  so  that  they  too  have  a  continuing  appropriation. 
Throughout  the  state  county  schools  of  agriculture  have 


EDUCATIONAL   LEGISLATION  127 

grown  up  rapidly.  Agriculture  has  been  placed  in  the 
high  schools,  manual  training  has  been  provided,  state 
inspection  and  regulation  have  been  secured  and  a  high 
order  of  educational  enterprise  has  resulted.  A  com- 
plete industrial  program,  calling  for  a  separate  body  to 
control  industrial  education  and  making  the  most  com- 
plete plan  for  an  educational  system  which  has  ever 
been  considered  or  introduced  in  any  state  of  this  coun- 
try, was  organized  by  the  legislature  in  its  1911  session. 
The  university  extension  division  is  the  great,  powerful 
link  which  connects  every  part  of  the  university  with 
the  individual  in  the  state.  It  must  be  remembered 
that  this  has  a  potent  influence  upon  the  public  and  the 
state  and  that  the  influence  of  the  university  reaches 
out  into  the  homes  of  the  state  through  this  extension 
department  by  means  of  its  correspondence  courses,  de- 
bates, etc.,  more  completely  than  in  any  other  state. 
Thus  the  state  through  its  generous  appropriations  to' 
this  institution  has  created  a  powerful  instrument  of 
knowledge,  not  only  on  public  questions  but  scientific 
ones  as  well. 

Agriculture 

The  prosperous  agricultural  condition  in  this  state 
to-day  stands  as  the  monument  to  a  great  genius, 
William  A.  Henry,  formerly  Dean  of  the  School  of  agri- 
culture, University  of  Wisconsin. 


128  THE   WISCONSIN   IDEA 

Agricultural  instruction  has  been  given  at  the  univer- 
sity since  1876,  but  in  1885  the  " short  course"  and  the 
courses  which  are  especially  formed  for  those  who  did 
not  have  the  time  or  educational  qualifications  to  take 
the  long  courses,  were  instituted.  These  courses  have 
been  of  enormous  help  to  the  entire  state;  they  have 
been  the  chief  source  of  the  upbuilding  of  the  great 
dairy  industry  of  the  state,  now  probably  second  to  none 
in  the  country. 

In  1890  the  course  especially  adapted  for  creamery 
and  cheese  factory  operators  was  started.  Hundreds  of 
young  men  actually  engaged  in  agricultural  pursuits 
attended  these  courses  every  year.  In  1908  in  addition 
to  farmers'  institutes,  agricultural  field  work  was  started ; 
demonstrations  of  all  kinds  were  held  throughout  the 
state.  Through  this  whole  agricultural  extension  move- 
ment, probably  a  closer  relation  between  the  farmers 
and  the  agricultural  department  has  been  instituted  in 
Wisconsin  than  in  any  other  state  and  this  is  just  the 
beginning.  The  county  agricultural  schools  have  aided 
this  work  greatly  in  recent  years  and  are  being  rapidly 
established.  The  following  quotation  from  a  recent 
report  shows  how  rapidly  and  how  efficiently  this  work 
is  progressing:  — 

"  Besides  supplying  the  real  needs  of  agricultural  instruction 
in  their  counties,  these  schools  serve  a  class  of  people  the  county 
and  high  schools  fail  to  reach ;  they  carry  on  their  own  lines  of 


EDUCATIONAL   LEGISLATION  129 

field  work  among  farmers ;  they  organize  cow-testing  and  grain- 
growing  associations;  they  furnish  assistance  in  planning  and 
creating  farm  buildings ;  they  hold  farmers'  meetings ;  they  are 
the  logical  centres  from  which  the  agricultural  field  work  service, 
carried  on  by  the  State  College  of  Agriculture,  radiates." 

The  following  is  a  list  of  some  of  the  work  and  other 
activities  of  the  agricultural  school  of  the  university :  — 

It  has  bred  pedigree  strains  of  barley,  oats  and  wheat, 
which  have  increased  the  grain  crop  of  the  state  millions 
of  dollars.  These  varieties  won  the  world's  champion- 
ship, 1910-1911,  at  the  national  corn  show. 

It  has  produced  a  kind  of  corn  which  can  be  grown  in 
the  northern  part  of  the  state. 

It  has  produced  grasses  and  legumes  which  formerly 
could  not  be  bred  in  the  state. 

It  has  made  extensive  investigations  in  the  sugar  beets 
in  relation  to  the  development  of  that  industry  in  the 
state. 

It  has  found  remedies  for  noxious  weeds. 

It  has  maintained  trial  orchards  in  the  northern  part 
of  the  state,  so  that  where  formerly  very  little  fruit 
existed,  now  all  kinds  of  fruit  are  growing. 

It  has  discovered  new  methods  of  managing  marsh 
soils. 

It  has  worked  out  new  methods  of  cranberry  culture, 
increasing  the  product  of  cranberries  from  one  to  ten 
barrels  per  acre  to  seventy  to  eighty  barrels  per  acre. 


130  THE   WISCONSIN   IDEA 

It  has  worked  out  scientific  rations  for  cattle.  Five 
of  the  six  tests  now  everywhere  used  in  dairying  were 
discovered  by  this  department. 

The  Babcock  fat  test  is  used  all  over  the  world.  The 
moisture  test  for  butter,  the  Wisconsin  curd  test,  the 
Farrington  acid  test  and  the  Hart  casein  test  are  the 
other  great  improvements  which  have  been  worked  out. 

New  methods  of  making  cheese,  utilizing  butter,  have 
been  worked  out. 

The  round  wood  silo  was  first  used  by  this  station. 

A  new  system  of  ventilation  for  stables  now  univer- 
sally used  was  worked  out  here.  Even  new  methods  of 
blasting  and  pulling  stumps  have  been  discovered. 

The  agricultural  department  has  demonstrations  all 
over  the  state;  grain  growing  contests,  pedigree  high 
grade  seed  contests  are  started  and  directed. 

The  fight  against  tuberculosis  in  cattle  by  demonstra- 
tion has  been  kept  up  vigorously. 

Fertilizers  and  feeding  stuffs  have  been  inspected  and 
analyzed. 

A  system  of  stallion  registration  has  already  reduced  the 
percentage  of  grade  stallions  over  1 5  per  cent  in  the  state. 

Tests  of  soils  have  been  made  on  hundreds  of  farms. 

Plans  have  been  made  to  reclaim  116,000  acres  by 
drainage  surveyage  within  the  next  five  years. 

How  astonished  a  college  professor  of  forty  years  ago 
would  be  if  he  were  told  that  a  college  would  do  all 


EDUCATIONAL  LEGISLATION  131 

these  things  !  Truly  we  do  not  have  to  look  in  the  dic- 
tionary now  for  a  definition  of  what  is  a  university. 

The  question  arises  at  once,  "But  isn't  all  this  ma- 
terialistic? Does  the  University  of  Wisconsin  spell 
'cow'?"  And  what  of  it?  If  the  boy  comes  from  the 
farm,  and  learns  at  the  university  how  to  make  that 
farm  more  useful  and  from  the  scientific  methods  which 
he  acquires  develops  more  orderly  habits  of  life,  if  he 
receives  some  inspiration  which  leads  to  progress  or 
some  ideals  which  lead  to  good  citizenship,  is  it  not 
worth  while?  If  he  because  of  his  scientific  knowledge 
of  farming  gained  in  a  short  course  makes  money,  his 
sister  may  be  sent  to  school,  probably  a  luxury  which 
could  not  have  been  afforded  otherwise. 

In  addition  to  the  above  an  agricultural  program  has 
been  planned  which  includes  the  teaching  of  agricul- 
ture in  all  the  rural  schools,  in  the  state  graded  schools, 
the  township  high  schools,  and  the  county  training 
schools  for  teachers,  and  a  greater  appropriation  for 
university  extension  and  agricultural  demonstration,  etc. 
The  foundation  of  all  these  things  has  been  put  into  law. 

University  Extension 

University  extension  has  long  been  connected  with 
colleges,  but  such  have  been  the  aristocratic  influences 
of  education  (and  there  are  no  greater  aristocrats  found 


132  THE   WISCONSIN  IDEA 

anywhere  than  in  education)  that  it  has  died  down  in 
other  states  until  it  has  become  simply  a  name. 

The  increasing  spirit  in  Wisconsin  demanded  that  the 
university  should  serve  the  state  and  all  of  its  people 
and  that  it  should  be  an  institution  for  all  the  people 
within  the  state  and  not  merely  for  the  few  who  could 
send  their  sons  and  daughters  to  Madison;  thus  was 
brought  about  the  establishment  of  the  extension  divi- 
sion about  five  years  ago. 

The  University  of  Wisconsin  during  these  few  years 
has  shown  the  world  what  constitutes  real  university 
extension.  It  has  accomplished  what  many  schools 
have  tried  to  accomplish  for  many  years  with  but  in- 
different results.  It  made  what  had  been  an  ideal  a 
practical  reality.  It  actually  did  and  does  bring  the 
university  to  every  fireside.  It  actually  has  shown  all 
universities  a  means  for  shedding  the  light  of  knowledge 
from  within  its  walls  to  every  home. 
T  The  distinctive  feature  of  this  department  is  that  it 
has  a  faculty,  an  administration  and  an  appropriation  of 
its  own.  It  now  spends  $125,000  a  year.  Under  the 
old  system  of  university  extension,  a  professor  gave  part 
time  at  the  university  and  delivered  a  few  sporadic 
lectures  in  the  field.  Under  this  new  extension  arrange- 
ment, professors  of  the  highest  rank  are  sent  out  into 
the  villages,  shops  and  factories  as  practically  travelling 
teachers,  meanwhile  bringing  the  students  in  the  field 


EDUCATIONAL  LEGISLATION  133 

in  touch  with  the  university  by  means  of  correspondence 
studies.  There  are  several  centers  or  stations  from 
which  the  work  can  expand  into  the  surrounding  locali- 
ties established  throughout  the  state  for  this  work. 
General  divisions  with  regular  faculty  are  formed  at  the 
university,  notably  in  engineering,  mathematics,  draw- 
ing, business  administration,  and  to  some  degree  in 
languages.  This  is  nothing  new;  private  enterprise 
has  been  doing  this  for  some  time  but  it  is  obvious  that 
the  state  can  do  more  than  any  private  enterprise. 
Private  correspondence  schools  must  make  a  profit  while 
the  state  may  be  satisfied  with  a  profit  of  improved 
conditions.  The  state  can  well  afford  to  invest  vast 
sums  of  money,  while  private  enterprise  must  always  take 
out  its  dividends.  When  the  state  enters  into  this  field 
the  private  enterprise  cannot  long  remain  a  competitor. 

Some  idea  of  how  extensive  and  diverse  the  work  of 
the  University  Extension  division  is  can  be  obtained 
from  the  following  statistics:  — 

There  are  now  about  5000  active  students  taking  the 
correspondence  work;  ninety-eight  professors  and  in- 
structors are  supervising  this  work.  Besides  this  there 
are  fifty-seven  local  classes  in  organized  districts  which 
the  professors  visit. 

In  the  department  of  debating  and  public  discussion 
about  80,000  articles  are  lent  out  annually  throughout 
the  state. 


134  THE   WISCONSIN   IDEA 

In  the  department  of  general  information  and  welfare 
many  institutes  are  held  and  much  diverse  work  is  done. 
Under  its  auspices  were  conducted  the  Milwaukee  bakers' 
institutes,  the  institute  of  municipal  and  social  service 
of  the  same  city  which  ran  twenty-one  weeks  last  year 
and  140  conferences  and  lectures.  The  Wisconsin  con- 
ference of  criminal  law  works  in  connection  with  this 
department,  as  does  also  the  Wisconsin  conference  of 
charities  and  corrections.  An  anti-tuberculosis  exhibit, 
in  cooperation  with  the  Anti-tuberculosis  association, 
was  carried  on  by  this  department,  which  reached  some 
112,000  people  in  this  state.  In  all,  nearly  500  lectures 
were  given  under  this  department.  This  same  depart- 
ment maintains  the  municipal  reference  bureau  which 
answers  1500  questions  a  year  from  many  villages  and 
cities  throughout  the  state  and  which  does  much  to 
organize  the  civic  interest  of  these  places. 

The  bureau  of  civic  and  social  centre  development  is 
also  under  this  division.  A  national  conference  was 
held  at  Madison,  under  the  auspices  of  this  bureau,  and 
some  sixty-four  communities  or  districts  were  assisted 
in  bettering  social  centre  facilities.  A  lecture  bureau 
sent  out  lecturers  last  year  to  some  ninety  communities 
in  the  state,  with  a  total  of  153  lectures. 

There  are  three  organized  districts  of  the  extension 
department  in  the  state,  one  in  Milwaukee,  one  at 
Oshkosh  and  one  at  La  Crosse.  The  one  in  Milwaukee 


EDUCATIONAL   LEGISLATION  135 

has  one  district  representative,  four  local  and  travelling 
instructors,  eight  local  instructors  for  night  classes  and 
four  field  organizers  and  thirty-six  classes,  —  a  good- 
sized  university  in  itself.  These  centres  are  being  rapidly 
developed  throughout  the  state. 

The  great  public  questions  of  the  day  are  all  outlined 
in  these  debates.  Following  are  some  of  the  outlines  of 
debates :  — 

General  Statement  —  Discussions  —  Themes  —  Package  Libraries. 
Principles  of  Effective  Debating. 
Debating  Societies,  organization  and  procedure. 
How  to  Judge  a  Debate. 

Constitution  for  Triangular  Debating  Leagues. 
Civic  Clubs,  organization  and  programs. 
Farmers1  Clubs,  organization  and  programs. 
Annexation  of  Cuba,  Independence  of  the  Philippines,  with  refer- 
ences. 

Closed  vs.  Open  Shop,  with  references. 
Commission  Plan  of  City  Government,  with  references. 
Consolidation  of  Rural. Schools,  Free  Text  Books,  with  references. 
Federal  Charter  for  Interstate  Business,  with  references. 
Guaranty  of  Bank  Deposits,  with  references. 
Income  Tax,  with  references. 

Increase  of  Navy,  Ship  Subsidies,  with  references. 

Inheritance  Tax,  with  references. 

Initiative  and  Referendum,  with  references. 

Parcels  Post,  with  references. 

Popular  Election  of  United  States  Senators,  with  references. 

Postal  Savings  Banks,  with  references. 

Proportional  Representation,  with  references. 


136 


THE  WISCONSIN  IDEA 


Recall,  with  references. 

Restriction  of  Immigration,  with  references. 

Simplified  Spelling,  with  references. 

Tariff  on  Trust-Made  Steel  Articles,  with  references. 

Woman  Su/rage,  with  references. 


Criticism  of  the  University 

The  university  has  its  endowment  from  the  people 
and  is  not  seeking  endowments  from  private  funds; 
therefore  free  speech  and  service  to  the  state  are  not 


EDUCATIONAL   LEGISLATION  137 

denied.  It  is  true  that  it  has  been  frequently  accused 
of  "ruling  the  state."  But  as  a  general  rule  the  pro- 
fessors wait  until  asked  before  venturing  to  give  an 
opinion  upon  a  public  question;  indeed,  they  are  gen- 
erally afraid  of  criticism,  and  it  sometimes  requires  a 
great  deal  of  urging  upon  the  part  of  the  legislature  to 
obtain  their  help.  During  many  years  of  legislative 
work  the  writer  has  found  the  members  of  the  legisla- 
ture glad  indeed  to  confer  with  the  expert  professor  and 
ask  his  advice,  be  it  on  a  question  of  tuberculosis,  the 
chemistry  of  gas  or  the  regulation  of  monopoly.  Such 
professors  are  often  reviled  and  censured  as  endangering 
the  life  of  the  university  —  accused  of  throwing  it  into 
politics  —  but  never  in  all  that  time  has  the  author 
heard  a  single  comment  involving  the  names  of  profes- 
sors who  were  engaged  as  well-paid  experts  by  private 
corporations.  No  comments  were  made  when  a  man 
connected  with  the  university  law  school,  for  instance, 
was  registered  as  the  "counsel  before  the  legislature  for 
all  public  service  corporations,"  and  yet  at  the  same 
time  other  men  whose  advice  was  sought  by  legislators 
were  attacked  fiercely  because  of  unpaid  toil.  Many  at- 
torneys and  scientists  of  both  types  have  been  before  the 
legislature  but  there  has  been  no  criticism  of  the  former 
class ;  indeed  they  deserved  none,  as  they  were  all  men  of 
high  standing  and  rendered  good  service  before  the  legis- 
lature, for  which  they  were  well  paid  by  private  parties. 


138  THE   WISCONSIN  IDEA 

If  the  legislature  may  not  secure  expert  service 
save  that  paid  for  by  private  interests,  it  will  never 
reach  the  scientific  basis  of  these  great  questions  now 
before  us  which  must  be  solved  by  the  aid  of  the 
expert's  technical  knowledge.  The  university  should  ' 
not  be  blamed  for  having  men  upon  whom  the  legisla- 
ture may  call  for  advice.  They  are  paid  from  public 
funds;  why  should  the  public  not  avail  itself  of  their 
services  ?  1  Certainly  the  teacher  of  political  science  or 
political  economy  who  is  worthy  of  consultation  upon 
governmental  matters  can  give  the  students  a  better 
idea  of  those  great  subjects  than  some  mossback  whose 
theoretical  learning  was  acquired  by  carefully  keeping 
away  from  the  only  laboratory  which  could  be  of  any 
service  to  him.  We  would  not  have  the  diseases  of 
cattle  taught  by  a  man  who  has  never  dissected  a  steer 
or  observed  the  course  of  disease  at  first  hand.  Why 
then  have  a  professor  of  political  economy,  political 
science,  teach  classes  in  governmental  matters  when  he 
has  never  worked  at  the  practical  solution  of  any  of 
the  great  economic  or  political  questions  of  the  day? 

Indeed,  it  is  a  healthy  sign  —  a  sign  that  a  depart- 
ment of  economics  or  of  political  science  is  not  sleeping 
when  its  men  are  constantly  attacked  by  those  who, 
session  after  session,  have  crowded  the  legislative  halls 
in  opposition  to  every  constructive  piece  of  legislation. 
1  See  Appendix  for  list  of  men  serving  both  state  and  university. 


EDUCATIONAL   LEGISLATION  139 

If  the  legislation  has  been  safe  and  sane  or  has  been  ad- 
ministered fairly,  some  of  these  very  men  should  pause 
and  think  and  render  thanks  to  the  careful  professor 
who  has  been  called  in  to  aid  its  making  or  who  has 
assisted  in  its  administration. 

The  university  has  a  duty  to  perform  and  cannot 
shirk  it.     It  is  being  supported  out  of  public  funds,  and i 
what  better  way  can  it  pay  its  obligation  than  through 
the  production  of  good  citizens  and  expert  help.     Says 
Professor  Turner: — 

"  But  quite  as  much  in  the  field  of  legislation  and  of  public  life 
in  general  as  in  the  industrial  world  is  the  expert  needed.  The 
industrial  conditions  which  shape  society  are  too  complex,  prob- 
lems of  labor,  finance,  social  reform  too  difficult  to  be  dealt  with 
intelligently  and  wisely  without  the  leadership  of  highly  educated 
men  familiar  with  the  legislation  and  literature  on  social  questions 
in  other  states  and  nations. 

"  By  training  in  science,  in  law,  politics,  economics  and  history 
the  university  may  supply  from  the  ranks  of  democracy  adminis- 
trators, legislators,  judges  and  experts  for  commissions  who  shall 
disinterestedly  and  intelligently  mediate  between  contending  in- 
terests. When  the  word  'capitalistic  classes'  and  'the  prole-'' 
tariat '  can  be  used  and  understood  in  America,  it  is  surely  time  to 
develop  such  men,  with  the  ideal  of  service  to  the  state,  who  may 
help  to  break  the  force  of  these  collisions,  to  find  common  grounds 
between  the  contestants  and  to  possess  the  respect  and  confidence 
of  all  parties  which  are  genuinely  loyal  to  the  best  American  ideals. 
The  signs  of  such  development  are  already  plain  in  the  expert  com- 
missions of  some  states ;  in  the  increasing  proportion  of  university 


140  THE   WISCONSIN   IDEA 

men  in  legislatures;  in  the  university  men's  influence  in  federal 
departments  and  commissions.  It  is  hardly  too  much  to  say 
that  the  best  hope  of  intelligent  and  principled  progress  in 
economic  and  social  legislation  and  administration  lies  in  the 
increasing  influence  of  American  universities.  By  sending  out 
these  open-minded  experts,  by  furnishing  well-fitted  legisla- 
tors, public  leaders  and  teachers,  by  graduating  successive 
armies  of  enlightened  citizens  accustomed  to  deal  dispassionately 
with  the  problems  of  modern  life,  able  to  think  for  themselves, 
governed  not  by  ignorance,  by  prejudice  or  by  impulse,  but  by 
knowledge  and  reason  and  high-mindedness,  the  state  universities 
will  safeguard  democracy.  Without  such  leaders  and  followers 
democratic  reactions  may  create  revolutions,  but  they  will  not  be 
able  to  produce  industrial  and  social  progress.  America's  problem 
is  not  violently  to  introduce  democratic  ideals,  but  to  preserve  and 
intrench  them  by  courageous  adaption  to  new  conditions.  Edu- 
cated leadership  sets  bulwarks  against  both  the  passionate  impulses 
of  the  mob,  the  sinister  designs  of  those  who  would  subordinate 
public  welfare  to  private  greed.  Lord  Bacon's  splendid  utterance 
still  rings  true :  '  The  learning  of  the  few  is  despotism ;  the  learn- 
ing of  the  many  is  liberty.  And  intelligent  and  principled  liberty 
is  fame,  wisdom  and  power.' 

"  There  is  a  danger  to  the  universities  in  this  very  opportunity. 
At  first  pioneer  democracy  had  scant  respect  for  the  expert.  He 
believed  that  '  a  fool  can  put  on  his  coat  better  than  a  wise  man 
can  do  it  for  him.'  There  is  much  truth  in  the  belief ;  and  the  edu- 
cated leader,  even  he  who  has  been  trained  under  present  university 
conditions,  in  direct  contact  with  the  world  about  him,  will  still 
have  to  contend  with  this  inherited  suspicion  of  the  expert.  But 
if  he  be  well  trained  and  worthy  of  his  training,  if  he  be  endowed 
with  creative  imagination  and  personality,  he  will  make  good  his 
leadership." 


EDUCATIONAL   LEGISLATION  141 

The  state  supported  university  as  now  existing  in  the 
middle  west  is  to  be  the  most  efficient  school  of  higher 
education  the  world  has  ever  seen.  It  cannot  help 
being  so.  As  its  cost  increases,  those  who  pay  the 
taxes  will  demand  that  results  be  shown  and  the  struggle 
between  old  ideals,  higher  learning  and  the  practical 
demands  of  the  busy  world  will  cause  such  a  reaction 
upon  reaction  that  it  cannot  help  producing  the  real 
mixture  of  the  ideal  and  the  practical  which  is  so  much 
needed  to-day.  The  by-products  of  the  establishment 
of  a  department  like  the  Wisconsin  university  extension 
division  are  perhaps  of  greater  value  than  the  depart- 
ment itself.  The  professor  comes  in  contact  with  the 
needs  of  the  citizen  and  tempers  his  theory  to  practice 
and  the  citizen  learns  to  respect  the  professor  —  and 
demands  more  like  him. 

Industrial  Education 

Industrial  education  has  been  placed  under  the  super- 
vision of  an  industrial  education  board  to  be  composed 
of  three  employers  of  labor  and  three  skilled  employees, 
the  state  superintendent  of  public  instruction,  the  dean 
of  the  extension  division  of  the  university  and  the  dean 
of  the  college  of  engineering  at  the  university.  Here- 
after every  child  employed  between  the  ages  of  fourteen 
and  sixteen  will  have  to  attend  school  for  five  hours  a 
week  out  of  the  time  of  the  employer  (chapter  660,  laws 


142  THE   WISCONSIN  IDEA 

of  191 1,  chapter  505,  laws  of  1911).  Instead  of  concen- 
trating upon  a  few  costly  trade  schools,  the  plan  is  to 
build  up  a  great  system  of  industrial  education  for  those 
actually  in  work;  to  do  something,  where  nothing  has 
been  done  to  help  all  the  workers;  that  is,  the  German 
continuation  school  in  all  its  essentials  has  been  incor- 
porated into  the  school  system  of  Wisconsin.  The  whole 
system  is  maintained  by  a  special  tax  and  has  a  special 
administrative  board,  as  above  described,  in  order  that 
the  boy  and  girl  who  is  actually  working  may  have  as 
good  a  chance  as  the  boy  or  girl  who  does  not  have  to 
work,  but  can  attend  high  school  or  college.  Classes 
are  being  established  as  rapidly  as  possible,  so  that  the 
special  work  in  which  children  happen  to  be  will  be 
provided  for.  It  is  specifically  provided  that  hygiene 
and  sanitation  must  be  taught  in  some  way  (chapter  615, 
laws  of  1911).  It  is  specifically  ordered  also,  that  all 
illiterates  under  twenty-one  years  of  age  must  attend 
evening  schools  whenever  these  evening  schools  can 
be  reached  by  them,  unless  excused  because  of  lack 
of  strength  (chapter  522,  laws  of  1911).  An  attempt  has 
been  made  to  rehabilitate  the  old  system  of  apprentice- 
ship by  chapter  347,  laws  of  1911,  but  it  will  be  noted 
that  the  outline  of  the  indenture  contains  the  following 
which  shows  the  social  purpose  of  this  kind  of  legislation  : 

"  An  agreement  between  the  employer  and  the  apprentice  that 
not  less  than  five  hours  a  week  of  the  aforesaid  fifty-five  hours  per 


EDUCATIONAL   LEGISLATION  143 

week  shall  be  devoted  to  instruction.  Such  instruction  shall  in- 
clude :  two  hours  a  week  instruction  in  English,  in  citizenship,  busi- 
ness practice,  physiology,  hygiene,  and  the  use  of  safety  devices." 

The  boy  who  is  to  become  a  bricklayer,  while  he  is 
in  apprenticeship  will  be  taught  not  only  the  mere  trade 
but  also  some  essentials  which  will  prepare  him  for  life 
and  a  place  in  the  civic  body,  giving  him  the  opportunity 
to  broaden  his  outlook  that  later  he  may  be  able  to  pass 
from  the  ranks  of  manual  skill  to  the  ranks  of  adminis- 
trative ability.  He  will  be  taught  not  only  brick- 
laying but  architecture,  buying  and  correlated  subjects. 
And  so  in  every  industry  the  same  general  requirements, 
subject  to  approval  by  the  state  board  of  industrial 
education,  must  be  met. 

A  local  board  of  industrial  education  is  also  provided 
and  a  liberal  state  aid  arrangement  is  added,  the  whole 
machinery  constituting  the  most  complete  plan  of  indus- 
trial education,  compulsory  in  most  of  its  features, 
which  has  ever  been  attempted  by  any  American  state. 

That  the  commission  upon  the  plans  for  the  extension 
of  industrial  and  agricultural  training,  appointed  by  the 
legislature  of  1909  to  report  in  1911,  had  a  very  broad 
outlook,  that  it  was  looking  for  the  improvement  of 
manhood,  of  womanhood,  and  of  the  state,  is  shown  by 
the  following  quotation  from  its  report.  It  is  given  here 

:ause  it  is  full  of  the  spirit  of  this  state  and  of  the 
movement  herein  described. 


144  THE   WISCONSIN  IDEA 

"  It  was  the  German  philosopher  Humboldt  who  said :  '  What-  ' 
ever  you  put  into  the  State  you  must  first  put  into  the  schools.' 
If  the  industrial  education  advocated  by  your  committee  will 
lead  merely  to  a  better  economic  man,  it  will  not  reach  its  highest 
aim.  It  must  be  judged  by  its  by-products  as  well  as  by  its  result 
in  dollars  and  cents.  It  must  be  judged  by  its  effect  upon  the  life 
of  the  people  and  upon  human  happiness  and  a  varying  number  of 
our  great  problems,  social  and  economic  and  moral,  with  which 
we  have  to  deal  to-day.  To  be  in  its  truest  sense  efficient,  it  must 
be  a  truly  democratic  education,  an  education  which  will  fit  all 
the  needs  of  all  the  people.  This  does  not  mean,  then,  that  it  must 
be  merely  utilitarian,  but  the  effect  of  it  must  be  such  that  we  can 
answer  definitely  the  question ;  will  it  improve  the  moral  situation?  - 
Will  the  boy  who  is  industrially  educated  under  this  system  be  a 
better  man  or  a  better  husband?  Will  he  be  a  better  citizen? 
Will  he  have  a  higher  sense  of  moral  obligation  ?  Will  be  be  more 
truthful,  honest  ?  Will  he  have  a  better  physique  ?  Will  he  be 
a  better  factor  in  our  life  to-day? 

"  It  is  obvious  that  in  order  to  make  this  system  so  that  all  these 
questions  can  be  answered  in  the  affirmative,  additions  must  be 
made  to  the  industrial  program.  The  Germans  have  not  for- 
gotten to  do  this.  They  are  noted  as  a  law-abiding  and  patriotic 
people.  There  is  no  doubt  that  the  system  by  which  citizenship 
is  taught  in  the  German  continuation  schools  has  its  effect  upon 
this  spirit  in  that  country. 

"  In  this  connection,  Dr.  George  Kerschensteiner  of  Munich 
has  the  following  to  say :  ' ...  As  you  see,  professional  efficiency 
is  put  foremost  because  those  who  cannot  stand  upon  their  own 
feet  vocationally  are  unable  to  help  others  and  prevent  them  from 
falling.  But  in  closest  contact  and  intimately  related  with  voca- 
tional education  must  go  the  second  aim  of  our  program;  t 


EDUCATIONAL   LEGISLATION  145 

develop  insight  into  the  connection  and  relation  of  the  interests  of 
all  citizens  alike,  and  especially  of  our  country,  to  take  care  that 
that  interest  manifests  itself  in  the  exercise  of  patriotic  self-sacri- 
fice, justice,  self-control,  cooperative  spirit  and  rational  hygiene, 
sensible  frugal  habits  of  living.  If  we  keep  the  first  aim  only  upper- 
most hi  our  educational  endeavors,  then  there  is  danger  of  training 
up  an  excessive  professional  and  individual  egotism. 

"  '  And  just  here  we  touch  the  critical  point  in  our  considera- 
tion of  the  value  of  industrial  schools  and  education.  If  we  in- 
struct the  prospective  industrial  mechanical  worker  not  only  in 
the  mechanical-technical  part  of  his  trade  but  likewise  introduce 
him  into  the  mysteries  of  social  and  economic  conditions,  not  only 
of  industrial  life  but  with  equal  interest  into  the  social  and  economic 
life  of  the  community  and  nation  of  which  he  is  a  citizen ;  if  we 
train  him  from  early  youth  to  make  him  feel  that  he  is  a  part,  how- 
ever small  a  part,  of  the  larger  whole  of  the  nation  to  which  he  is 
inseparably  tied  by  all  his  interests,  then  he  will  be  more  or  less 
able  to  counteract  and  modify,  if  not  to  annul,  the  evil  tendencies 
of  modern  industrial  conditions. 

"  '  We  should  not  forget  that  economic  and  social  conditions 
are  not  only  the  product  of  natural  laws  but  to  no  small  degree 
they  are  the  product  of  the  moral  and  educational  standards  of 
the  people.  .  .  .' 

"  There  is  no  doubt  that  courses  in  hygiene,  sanitation,  pro- 
tective devices  in  machinery  as  well  as  the  courses  in  citizenship, 
are  indispensable  in  these  schools.  They  are  seldom  or  never 
omitted  in  the  best  continuation  schools  abroad.  In  practically 
every  continuation  class  in  Munich  a  boy  has  to  take  one  hour  a 
week  of  this  training  for  four  years.  The  cumulative  effect  of 
fhis  upon  citizenship  is  very  great,  as  well  as  upon  the  health  and 
stamina  of  the  race,  and  cannot  be  underestimated. 


146  THE  WISCONSIN  IDEA 

"  The  combating  of  political  corruption,  as  well  as  physical 
disease,  is  one  of  the  great  by-products  of  this  work,  the  effect  of 
which  has  not  been  fully  understood  in  connection  with  other  cor- 
related movements  in  Germany.  Sanitary  conditions  of  facto- 
ries, sanitary  conditions  of  homes,  progress  towards  health  and  the 
righting  of  disease,  the  economies  practiced  by  the  cutting  down  of 
injuries  and  of  sickness  caused  by  carelessness  in  factories,  the  cheap- 
ening of  industrial  insurance — all  come  from  this  source.  These 
are  powerful  influences  which  are  basic  and  cannot  be  omitted. 
It  is  but  a  truism  to  say  that  intelligence  is  aided  when  disease  is 
curbed  and  good,  cleanly  conditions  exist  in  the  home. 

"  Reformers  in  America  are  striving  to  get  some  knowledge  of 
why  corruption  is  rampant  here.  We  are  fighting  political  cor- 
ruption and  physical  disease  at  the  same  time.  We  may  have 
reform  periods  or  spasms ;  we  may  create  temporary  organizations 
for  the  purpose  of  reforming  government ;  we  may  deliver  lectures, 
or  our  magazines  may  lead  in  pointing  out  the  defects  in  govern- 
ment, but  we  will  never  get  a  true  sense  of  obligation  to  the  state 
until  we  teach  that  obligation.  If  we  teach  this  in  college  or  the 
high  school  we  will  not  hit  the  mark.  How  can  we,  when  four- 
fifths  of  the  boys  and  girls  do  not  go  to  high  school  or  college  ? 
We  never  can  completely  fight  disease,  political  or  physical,  unless 
we  teach  these  four-fifths,  in  some  way,  how  to  fight. 

"  Our  great  success  in  the  battle  against  tuberculosis  comes 
largely  from  a  determined  effort  to  educate  our  people  in  a  knowl- 
edge of  that  disease,  its  prevention  and  cure.  We  can  never  erad- 
icate political  corruption  unless  we  use  the  same  determination 
and  begin  at  the  time  when  a  young  man  can  be  taught  something 
about  citizenship.  Our  lawyers  tell  us  that  very  little  can  be  done 
by  legislation;  that  we  cannot  make  people  good  by  law.  The 
Germans  look  upon  the  law  and  the  state  as  great  moral  forces, 


EDUCATIONAL   LEGISLATION  147 

but  it  is  doubtful  if  the  lesson  of  moral  obligation  would  be  any 
more  effective  in  Germany  than  it  is  in  this  country,  unless  this 
same  foundation  in  education  exists. 

"  Consider  tuberculosis  for  a  moment.  We  had  in  America  a 
few  years  ago  awful  conditions  in  the  slums  of  our  cities.  We 
had  what  were  known  as  the  '  lung  blocks.'  It  was  the  custom 
to  allow  the  poor  people  who  had  tuberculosis  to  die  in  these  hor- 
rible unsanitary  tenements  without  doing  anything  to  eradicate 
the  scourge.  If  a  man  was  seized  with  tuberculosis,  people  said : 
'Well,  what  can  we  do?  He  will  die.  We  can  do  nothing.' 
Scientists  had  for  a  long  time  known  that  if  patients  could  be 
segregated  and  fresh  air  and  cleanliness  could  be  provided,  we 
would  stand  a  good  chance  of  winning  the  battle  against  tuber- 
culosis. That  terrible  disease  had  its  main  seats  in  the  horribly 
overcrowded  sections  in  our  cities,  inhabited  mainly  by  immi- 
grants or  the  sons  and  daughters  of  immigrants.  What  was  done 
about  it  in  the  end  ?  With  desperate  odds  against  us,  we  began  a 
great  campaign  of  education.  We  put  enormous  sums  of  money 
into  the  fight  to  teach  people  how  to  overcome  this  great  plague. 
Now  we  are  winning  the  battle  and  we  are  driving  this  disease  out 
of  our  cities  and  our  country  —  by  education. 

"  We  have  eliminated  other  diseases  as  the  result  of  this  great 
movement,  and  as  a  by-product  of  our  methods.  By  teaching 
cleanliness,  fresh  air,  sanitation,  we  have  helped  to  drive  away 
typhoid  fever  and  pneumonia,  and  to  raise  the  physical  and  men- 
tal standards  of  our  people.  Our  political  disease  goes  hand  in 
hand  with  our  physical  disease.  It  comes  from  the  same  source. 
It  comes  largely  from  the  overcrowded,  unsanitary  districts  in 
our  cities.  It  comes  largely  from  alien  population  pouring  into 
the  country  at  the  rate  of  over  a  million  a  year.  However  good 
the  stock  from  which  they  came,  the  great  majority  of  our  immi- 


148  THE   WISCONSIN  IDEA 

grants  know  very  little  about  the  history  of  our  country ;  in  fact, 
hardly  know  what  American  citizenship  is.  They  come  in  contact 
with  the  worst  types  of  citizenship  we  have  among  us ;  they  see  the 
deference  to  wealth  acquired  by  corruption,  and  the  general  care- 
lessness of  our  ideals  concerning  government.  They  naturally 
form  their  ideals  under  these  conditions.  Is  it  any  wonder  that 
when  nothing  is  done  to  cure  political  corruption,  it  should  be  as 
rife  in  these  places  as  tuberculosis  ? 

"  When  an  immigrant  comes  to  this  shore,  he  has  to  wait  five 
years  before  he  is  naturalized.  In  those  five  years  what  educa- 
tion in  citizenship  does  he  obtain  ?  He  sees  the  poor  in  the  slums 
around  him,  he  realizes  the  desperate  fight  for  existence,  he  often 
finds  that  his  only  help  in  that  strife  is  the  political  boss  or  the  cor- 
rupt politician.  He  cannot  help  getting  a  perverted  idea  of  citizen- 
ship. How  can  we  fight  this  political  tuberculosis  and  have  any 
success?  Does  it  seem  possible  that  any  industrial  prosperity 
which  comes  from  industrial  education  will  be  of  any  real  use  to 
us  in  the  future,  if  conditions  similar  to  these  exist  ?  If  we  strive 
to  build  up  prosperity  through  industrial  education  without  build- 
ing up  the  health  of  the  average  man  or  average  woman,  and  with- 
out building  up  true  citizenship,  we  will  not  have  really  democratic 
education.  Any  industrial  education  without  these  other  factors 
will  be  a  dismal  failure.  We  may  pass  all  the  resolutions  we  want 
to,  but  the  only  way  to  cure  political  corruption  in  our  cities  is  to 
cure  it  in  the  way  we  are  stamping  out  tuberculosis  —  by  education.11 

The  way  in  which  the  university  will  cooperate  with 
industrial  education  may  be  of  interest  to  students  of 
industrial  education  who  are  now  striving  to  meet  the 
great  problem  of  how  to  start  a  system  of  this  sort. 
The  following  excerpt  from  the  report  which  has  now 
been  enacted  into  law  shows  how  it  may  be  done :  — 


EDUCATIONAL   LEGISLATION  149 

"  The  university  extension  division  cannot,  from  its  very  nature, 
do  the  permanent  work  of  the  continuation  and  trade  schools. 
There  is  a  parallel  between  its  methods  and  work  and  those  of  the 
early  church  organizations.  It  was  necessary  at  first  to  have  some 
kind  of  missionary  work,  as  perhaps  some  little  local  demand  be- 
came evident.  Then  circuit  riders  were  sent  around;  men  who 
preached  one  Sunday  in  one  little  town  and  the  next  Sunday  in 
another ;  the  circuits  grew  smaller  as  time  went  on  until  churches 
were  built,  pastors  secured,  and  permanent  organizations  estab- 
lished in  each  town. 

"  The  university  extension  work  can  follow  the  same  method. 
When  little  centers  are  established,  permanent  buildings  erected  '' 
and  permanent  teachers  secured,  then  the  university  extension 
work  can  be  used  as  a  sort  of  circuit  riding  organization  for  the 
still  higher  grades  of  work  until  the  needs  of  the  higher  grades  are 
supplied  by  permanent  organization.  In  this  way  the  university 
extension  work  can  form  the  means  of  building  up  the  whole  sys- 
tem from  one  which  deals  even  with  the  needs  of  a  single  individual 
in  a  little  community  to  a  complete  system  for  the  whole  state. 
This  very  elasticity,  resulting  in  a  variety  of  results  by  which 
different  grades  of  students  and  different  grades  of  work  can  be 
taken  care  of,  is  just  what  made  German  industrial  education  suc- 
cessful. With  a  mistaken  policy,  some  of  her  educational  directors, 
fortunately,  however,  not  the  leaders,  have  recently  tried  to  grade 
and  qualify  this  work.  This  has  been  defeated  and  the  work  saved 
from  becoming  static.  The  present  system  in  that  country,  with 
local  schools  adjusted  to  local  needs,  with  varying  degrees  of  schools 
from  the  lowest  continuation  school  through  to  the  highest  technical 
school,  has  been  a  far  better  arrangement  for  Germany,  and  for 
that  matter  can  be  a  far  better  method  to  start  with  in  this  state, 
than  that  brought  about  by  a  more  strict  classification.  .  .  . 


150  THE   WISCONSIN  IDEA 

"  It  is  just  this  element  of  elasticity  which  Privy  Councillor  Dr. 
von  Steefeld  advocates,  that  makes  the  extension  division  of  pecul- 
iar significance.  It  is  fortunate  for  us  at  this  time  that  we  have 
this  organization  in  our  state.  In  a  state  like  ours,  containing 
many  small  villages  with  one  or  two  manufacturing  establishments, 
the  question  upon  which  our  whole  scheme  must  fall  or  must  live, 
is  what  can  we  do  with  industrial  education  in  each  little  place? 
The  large  manufacturer  does  not  have  to  be  discussed.  He  can 
teach ;  he  can  gather  in  his  apprentices  and  train  them,  but  most 
of  the  factories  or  mercantile  establishments  in  Wisconsin  are  not 
large  enough  to  manage  an  undertaking  of  this  kind  for  themselves. 
Most  of  our  schools  in  the  northern  part  of  the  state,  especially 
in  the  scattered  villages,  have  not  enough  money  to  give  any  kind 
of  an  advanced  course.  If  we  cannot  give  these  courses  by  one 
means  we  must  give  them  by  another,  and  the  only  way  in  which 
we  can  give  them  and  reach  out  to  all,  is  through  the  extension 
division,  its  correspondence  methods  and  its  travelling  lecturers 
and  teachers.  Professor  Person  in  his  book  upon  industrial  edu- 
cation says :  '  Except  in  those  rare  instances  of  highly  centralized 
states  which  are  able  to  impose  upon  their  people  educational 
systems  created  de  novo,  such  an  institution  must  be  the  result  of 
gradual  development.  When  its  scope  is  enlarged  to  meet  new 
situations,  to  reach  new  classes  or  to  train  for  new  activities,  this 
enlargement  should  be  accomplished  neither  by  creating  new  in- 
struments unrelated  to  the  general  system  nor  by  wholly  recon- 
structing the  already  existing  system.  This  should  be  accom- 
plished by  developing  new  members  which  fit  into  the  existing 
system  and  which  become  integral  parts  of  it.' 

"  Wisconsin  is  not  a  highly  centralized  state  and  cannot  impose 
upon  its  people  an  educational  system  created  de  novo.  The  uni- 
versity extension  division  will  not  interfere  in  any  way  with  the 


EDUCATIONAL  LEGISLATION  151 

existing  system,  but  will  add  a  new  member  which  will  dovetail 
into  the  gaps  in  the  whole.  It  will  not  only  fit  into  the  gaps  of 
the  whole  system,  but  it  will  be  the  medium  by  which  the  results 
of  the  highest  economic  research  and  the  results  of  the  best  eco- 
nomic and  industrial  methods  can  be  added  from  time  to  time. 
It  will  be  a  long  time  in  this  state  before  every  city  of  the  third  or 
fourth  class  can  have  any  very  efficient  higher  industrial  education. 
The  elementary  grades  will  necessarily  be  taken  care  of  first  and 
the  simple  needs  administered  to.  If  the  spirit  in  which  this  report 
is  written  be  carried  out,  the  greatest  number  will  be  served  in  a  little 
way  until  something  can  be  done  for  those  who  demand  more  special 
work.  But  it  is  by  means  of  the  extension  division  that  these 
special  cases  can  be  taken  care  of.  If  a  young  man  outstrips  his 
competitors  and  by  extraordinary  brightness  devours  the  educa- 
tional opportunities  of  his  prescribed  district,  there  will  be  only 
one  way  in  most  of  the  cities  and  villages  to  take  care  of  him,  and 
that  is  by  allowing  him  to  expand  through  the  extension  division." 

Thus  the  efficiency  of  the  unit  is  looked  after  in  order 
that  what  is  done  may  be  well  done  and  will  be  no 
sporadic,  so-called  reform  movement.  That  it  will  be 
built  on  the  sound  rock  of  good  citizenship  and  will  be 
safe  from  fads  and  fancies  not  even  the  rrrost  conserva- 
tive business  man  can  deny. 

The  state  has  a  system  of  normal  schools  with  a 
separate  board  of  regents,  provides  liberally  for  its  grade 
and  high  schools  and  is  gradually  developing  plans  for 
betterment.  Considering  the  now  unsettled  condition  of 
large  areas  of  this  state,  good  work  has  been  done  in 
the  county  training  schools  for  teachers,  the  teachers' 


152  THE   WISCONSIN   IDEA 

institutes  and  in  the  establishment  of  a  good  system  of 
regulation  and  inspection.  An  investigation  is  now  in 
progress  under  the  direction  of  the  newly  created  Board 
of  public  affairs  with  the  help  of  experts  from  the  Bureau 
of  municipal  research  in  New  York  City,  which  will 
result,  no  doubt,  in  a  thorough  readjustment  of  the 
system.  The  means  for  the  enforcement  of  the  truancy 
laws  were  greatly  strengthened  by  the  1911  legislature, 
while  severe  compulsory  education  and  child  labor  laws 
are  gradually  having  good  effect.  Over  fifty  laws  relat- 
ing to  the  betterment  of  the  Wisconsin  schools  were 
passed  at  the  session  of  1911. 

Lack  of  space  forbids  going  into  many  interesting 
educational  developments  but  a  word  must  be  said 
about  the  travelling  libraries  of  the  Wisconsin  free 
library  commission.  These  boxes  of  books  are  sent 
into  every  far-away  section  of  the  state 'bringing  directly 
to  every  home  in  every  little  community  the  best  litera- 
ture of  the  day.  They  are  changed  often  so  that  there 
is  always  something  fresh  and  new.  They  have 
brightened  the  lives  of  many  toilers  and  made  interest- 
ing and  instructive  the  long  winter  evenings  in  the  little 
homes  on  the  far-away  farms  as  well  as  added  to  the 
volume  of  intelligence,  citizenship  and  womanhood. 
The  travelling  libraries  and  the  public  libraries  which 
have  followed  after  them  together  with  the  library 
school,  will  remain  a  truly  great  monument  to  a  great 
seer  and  warm-hearted  idealist,  Mr.  Frank  A.  Hutchins. 


EDUCATIONAL  LEGISLATION  153 

CONSERVATION  AND  DEVELOPMENT 

Although  Wisconsin  was  the  third  state  to  take  up 
the  work  of  preserving  the  forests  in  a  successful  manner, 
it  was  the  first  great  lumber  state  to  do  so.  With  the 
lumber  baron  eager  in  his  desire  to  waste  and  destroy, 
there  were  many  difficulties  in  the  establishment  of  an 
efficient  department  and  there  is  nothing  of  which  the 
state  may  be  more  proud,  than  of  its  accomplishment. 
It  has  now  a  reserve  of  423,000  acres,  and  plans  are 
made  for  a  reserve  of  2,000,000  acres.  It  is  the  pur- 
pose to  preserve  the  upper  waters  of  the  great  rivers 
of  the  state  in  order  that  the  water  power  may  be  con- 
served, at  the  same  time  helping  the  wood  industry  of 
the  state  and  protecting  the  beauty  of  the  northern 
part  of  the  state.  The  northern  part  of  Wisconsin  is  a 
great  playground  of  wonderfully  interlaced  rivers,  lakes 
and  forests.  The  protection  of  this  region  from  fire  and 
its  redemption  because  of  its  effect  upon  the  water  power 
of  the  future,  will  save  many  times  its  invested  value. 
It  has  been  a  difficult  fight  to  maintain  this  and  par- 
ticularly since  the  Wisconsin  constitution  permits  no 
state  debt  and  the  state  by  taxation  must  pay  for  this 
preservation  to  posterity  of  the  wealth  of  the  state. 
Wisconsin  has  dropped  from  first  place  in  1900  in  the 
production  of  forest  products  to  eighth  in  1910,  a  greater 
loss  than  any  other  state.  To  check  this  loss  is  a  great 


THE   WISCONSIN   IDEA 

task,  for  without  a  state  debt  the  burdens  are  so  heavy 
upon  the  tax-bearer  that  it  is  difficult  to  convince  him 
of  the  wisdom  of  investing  for  the  future.  The  ordinary- 
settler  who  has  a  hard  time  cutting  out  a  little  home 
for  himself  in  the  new  regions  of  the  state  is  indignant 
at  the  thought  of  the  state  taxing  him  to  preserve  the 
forests.  However,  the  total  funds  for  this  department 
now  approximate  $125,000  for  the  forestry  department 
and  the  beginnings  of  a  system  of  fire  wardens  and  fire 
protection  throughout  the  state.  In  spite  of  all  oppo- 
sition and  considering  all  the  circumstances,  no  state 
has  made  a  greater  advance  in  this  line.  So  great  in- 
deed has  been  its  progress  that  the  United  States 
government  recently  established  on  university  land 
a  forest  products  laboratory  for  the  testing  of  wood 
products,  an  evident  appreciation  of  what  has  been 
accomplished. 

Conservation  and  educational  development  must  be 
considered  together.  The  schools  and  the  university 
cooperate  in  this  development  and  in  the  education 
and  experimentation  which  lead  to  a  sound  public 
opinion  on  these  matters.  In  the  debates  occasioned 
by  the  good  roads  bill,  the  university  extension  depart- 
ment sent  out  special  debating  material  on  every  phase 
of  the  question.  After  a  struggle  reaching  over  many 
years,  the  bill  was  finally  passed  in  the  1911  session  in  a 
form  which  will  not  allow  petty  sensational  politicians 


EDUCATIONAL   LEGISLATION  155 

to  control  but  provides  for  a  scientific  distribution  of 
state  aid  to  roads  as  well  as  scientific  aid  in  the  con- 
struction of  these  roads.  It  will  doubtless  add  millions 
of  dollars  to  the  rural  values  of  this  state  in  a  com- 
paratively short  time.  It  is  in  line  with  the  other  great 
developments  which  have  been  set  forth  in  this  book. 
It  shows  that  the  people  of  Wisconsin  are  striving  for 
that  kind  of  legislation  which  will  lead  to  both  economic 
and  social  results.  It  will  make  the  country  better  to 
live  in  and  make  the  farmers  better  in  an  economic 
sense.  It  is  a  great  undertaking  for  a  state  which  has 
yet  some  ten  million  acres  of  unoccupied  land. 


CHAPTER  VI 

LABOR,  HEALTH  AND  PUBLIC  WELFARE 

UNDER  the  management  of  Mr.  Halford  Erickson,  the 
labor  bureau  of  the  state  of  Wisconsin  was  developed 
so  that  it  ranked  with  that  of  New  York  and  Massa- 
chusetts. Sound  laws  for  the  protection  of  life  and 
health  were  enacted.  The  child  labor  law  was.  a  great 
advance  in  such  legislation.  It  remained  however,  for 
the  1911  session  of  the  Wisconsin  legislature  to  enact 
a  code  of  labor  legislation  which  puts  the  work  of  this 
body  ahead  of  any  other  in  the  country.  Besides  the 
numerous  laws  for  the  protection  of  life  and  health 
and  the  better  conditions  for  women  in  factories,  there 
are  two  laws  which  are  worthy  of  comment ;  the  first  of 
which  is  the  workmen's  compensation  act,  chapter  50, 
laws  of  191  Y  The  conflict  over  that  act  and  the  pre- 
vious attempts  upon  the  part  of  the  legislature  to  modify 
the  laws  relating  to  contributory  negligence,  co-employ- 
ment, the  assumption  of  the  risk,  etc.,  form  an  interest- 
ing page  in  the  history  of  Wisconsin.  This  state  has 
only  recently  become  a  manufacturing  state  but  the 
necessity  of  new  conditions  is  sure  to  bring  legislation  in 
its  trail.  No  doubt  the  humane  spirit  prevalent  in  the 
state  and  the  whole  enlightened  attitude  of  the  courts 

156 


LABOR,    HEALTH   AND   PUBLIC   WELFARE  157 

tended  to  stimulate  activity  for  betterment.  The  in- 
adequacy of  all  old  remedies  for  personal  injuries  was 
apparent  to  all.  The  labor  bureau  under  the  direction 
of  an  expert  from  the  university,  made  a  scientific  study 
of  this  question,  which  revealed  such  startling  results 
that  there  was  evidently  but  one  course  to  follow, 
namely,  to  adopt  some  form  of  workmen's  compensa- 
tion or  industrial  insurance.  As  Chief  Justice  Winslow 
of  the  supreme  court  said  in  the  decision  recently  ren- 
dered, in  which  the  constitutionality  of  this  law  was 
upheld :  — 

"  Legislate  as  we  may  in  the  line  of  stringent  requirements  for 
safety  devices  or  the  abolition  of  employers'  common  law  defenses, 
the  army  of  the  injured  will  still  increase,  the  price  of  our  manu- 
facturing greatness  will  still  have  to  be  paid  in  human  blood  and 
tears.  To  speak  of  the  common  law  personal  injury  action  as  a 
remedy  for  this  problem  is  to  jest  with  serious  subjects,  to  give  a 
stone  to  one  who  asks  for  bread.  The  terrible  economic  waste,  the 
overwhelming  temptation  to  the  commission  of  perjury  and  the 
relatively  small  proportion  of  the  sums  recovered  which  comes  to 
the  injured  parties  in  such  actions,  condemn  them  as  wholly  inade- 
quate to  meet  the  difficulty." 

The  Wisconsin  workmen's  compensajioii^ct  is  an 
excellent  example  of  the  caTfe&Htfay  in  which  the  leaders 
in  Wisconsin  work.  The  agitation  was  started  by  the 
labor  element.  After  several  years  of  discussion  a 
committee,  headed  by  an  able  attorney,  A.  W.  Sanborn, 
was  appointed  by  the  legislature  of  1909.  This  com- 


158  THE   WISCONSIN -IDEA 

mittee  did  not  hesitate  to  use  the  best  available  aid. 
Through  expert  help,  the  device  of  depriving  the  em- 
ployer of  certain  of  his  defences,  permitting  him  to 
accept  certain  terms  by  which  he  agreed  to  give  com- 
pensation, was  inaugurated.  This  was  a  powerful  con- 
stitutional device,  more  powerful  than  it  seems  at  first. 
The  employer  may,  if  he  wishes,  run  his  establishment 
under  the  employers'  liability  plan  and  take  the  risk  of 
a  suit  for  damages  in  the  courts  or  elect  to  come  under 
the  law  by  which  his  common  law  defences  are  prac- 
tically all  taken  from  him.  The  point  is,  he  is  not 
compelled  to  accept  the  compensation  plan  unless  he 
so  chooses  but  it  is  obviously  to  his  advantage  to  do  so. 
New  York  had  taken  the  other  step  and  enacted  a  direct 
law  for  compensation  which  was  declared  unconstitu- 
tional by  the  courts  because  of  its  compulsory  features, 
involving  the  taking  of  property  without  due  process  of 
law.  Is  it  possible  under  the  constitutions  of  the  states 
or  the  United  States  to  impose  upon  an  employer  the 
duty  of  paying  to  an  employee  so  much  for  an  arm  or 
so  much  for  an  eye  without  having  the  case  come  to 
trial  in  the  courts? 

The  Wisconsin  men  saw  that  it  was  not  only  a  ques- 
tion of  the  constitutionality  but  also  a  question  of  the 
prevention  of  litigation.  The  question  whether  the 
direct  or  the  indirect  method  will  prove  most  effective 
in  America  has  not  yet  been  decided,  but  nine  states  at 


LABOR,    HEALTH  AND   PUBLIC   WELFARE  159 

this  writing  have  followed  the  Wisconsin  indirect  system. 
Let  us  consider  for  a  minute  the  advantages  of  this  plan. 
Suppose  that  the  employer  does  not  elect  to  come  under 
the  new  law  but  appears  before  the  court  on  a  question 
of  neglect.  The  courts  will  say  to  him,  "Why  did  you 
not  come  in  under  the  act  ?  If  you  wanted  the  protec- 
tion of  the  act,  all  you  had  to  do  was  to  accept  its  pro- 
visions." As  a  result  the  employer  is  going  to  be  dealt 
with  harshly  because  he  did  not  come  under  the  act. 
Suppose  on  the  other  hand,  that  the  employer  comes 
under  the  act  and  then  tries  to  quibble  or  form  a  case 
upon  a  legal  technicality.  Immediately,  the  court  will 
say  to  him,  "You  accepted  the  provisions  of  this  act 
with  your  eyes  open.  You  accepted  the  jurisdiction  of 
the  arbitration  board  which  is  set  forth  in  the  act  and 
the  standards  which  it  establishes."  Consequently 
there  will  be  a  discouragement  of  litigation  and  after  all, 
for  what  is  a  workmen's  compensation  act  enacted  if 
not  to  decrease  litigation?  The  legislature  abolished 
the  great  body  of  protection,  due  to  legal  technicalities 
and  precedents  built  up  around  the  employer  and  based 
the  reward  upon  the  findings  of  this  industrial  court. 
The  aim  of  the  law  is  to  prevent  litigation  and  an  in- 
direct system  accomplishes  this  more  effectively  than  a 
direct  system.  The  latter  imposing  a  club  over  every 
industry,  will  have  to  be  carefully  construed  by  the 
courts  and  that  means  litigation  in  the  end. 


l6o  THE  WISCONSIN  IDEA 

The  men  who  formed  the  Wisconsin  idea  were  first 
confronted  in  the  workmen's  compensation  act  with  the 
problem  of  taking  either  the  English  act  or  the  German 
system  as  a  basis.  At  first  they  were  inclined  to  adopt 
the  English  system  but  they  found  that  if  they  did  so 
there  would  be  serious  complications  confronting  them. 
Persons  connected  with  the  investigation  went  to  Eng- 
land and  Germany  and  studied  the  actual  conditions  in 
the  great  insurance  departments,  in  the  hospitals  and 
in  the  factories.  They  also  compared  the  conditions  of 
England  and  Germany  and  transmitted  to  the  com- 
mittee their  findings.  It  became  apparent  that  in  Eng- 
land, the  entrance  of  a  third  party  (the  insurance  com- 
panies) created  a  condition  which  was  not  a  wholesome 
one.  The  third  party  did  not  care  about  the  laborer  or 
the  capitalist;  its  interest  was  purely  financial;  its 
object  was  to  conduct  the  business  with  the  least  cost 
possible  and  to  derive  the  greatest  dividends  therefrom. 
A  great  deal  of  litigation  as  well  as  dissatisfaction  was 
found  in  England.  There  the  insurance  companies  had 
many  hangers-on,  doctors,  lawyers,  etc.,  the  cost  of 
whom  had  to  be  met  in  some  way,  while  in  Germany 
the  direct  relation  between  the  manufacturer  and  his 
employee  led  to  a  mutual  basis  of  respect.  In  England 
it  was  not  uncommon  to  find  that  if  a  certain  company 
had  old  men  in  its  employ,  the  insurance  companies 
would  raise  the  rate  unless  the  firm  disposed  of  them. 


LABOR,   HEALTH  AND   PUBLIC  WELFARE  l6l 

The  German  system,  based  upon  an  entirely  different 
idea  of  a  more  humane  nature,  led  the  manufacturer  to 
keep  his  employees  and  to  care  for  them  and  when  they 
were  old  they  were  certain  not  to  be  cast  out.  The 
mutual  good  feeling  between  the  manufacturer  and  his 
employee  was  thus  greatly  enhanced  by  the  German 
system.  Those  who  studied  the  conditions  in  Germany 
convinced  the  committee  that  it  would  be  a  wise  thing 
for  the  state  of  Wisconsin  to  adopt  as  far  as  possible 
the  German  plan.  The  litigation  was  less  and  the 
courts  were  especially  adapted  for  the  curtailment  of 
litigation.  An  adaptation  of  the  arbitration  court 
scheme  of  Germany  was  practically  adopted  in  the  Wis- 
consin law.  The  committee  went  further  and  recom- 
mended the  adoption  of  some  mutual  basis,  providing  a 
device  in  the  bill  for  carrying  it  out. 

The  manufacturers  of  Wisconsin,  mostly  of  Germanic 
descent  and  the  employees  many  of  the  leaders  of  whom 
were  also  of  German  descent,  gave  the  utmost  coopera- 
tion in  the  drafting  of  this  bill.  The  men  sent  abroad 
learned  that  the  splendid  system  of  insurance  in  Ger- 
many for  sickness,  old  age,  accidents  and  invalidity  was 
really  an  asset  and  not  a  liability.  A  German  manu- 
facturer in  Cologne  gave  the  writer  the  following  as  a 
basic  idea  of  the  new  economic  philosophy  existing 
there.  If  in  America  you  want  to  invest  $200,000  in  a 
manufacturing  establishment,  you  put  it  all  in  the 


1 62  THE    WISCONSIN   IDEA 

factory.  It  has  gradually  been  found  in  this  country 
that  this  is  the  wrong  method ;  the  right  way  is  to  put 
$100,000  in  the  plant  and  $100,000  in  the  men  who  run 
the  plant.  If  you  can  promise  a  man  who  comes  into 
your  employ  that  he  will  have  a  clean,  bright  place  in 
which  to  work,  that  he  can  get  married  and  bring  up 
children  because,  if  he  is  hurt,  you  will  provide  for  him ; 
in  old  age  that  he  will  be  cared  for;  that  if  he  is  sick 
he  will  receive  some  benefit  from  you  and  that  his  grow- 
ing children  will  receive  industrial  education  which  will 
fit  them  for  the  work  of  society  and  not  leave  them 
drifting,  masterless  men,  you  will  have  no  difficulty  with 
your  employees.  It  is  not  strange  that  this  philosophy 
was  brought  into  the  Wisconsin  law  for  workmen's  com- 
pensation, because  the  idea  had  already  been  adopted 
that  the  state  must  protect  and  invest  in  the  life  and 
happiness  of  the  individual  in  order  that  the  greatest 
prosperity  might  come  from  it  and  that  security,  peace 
and  happiness  are  the  best  foundations  of  good  govern- 
ment and  prosperity.  Those  who  had  been  taught  by 
John  Bascom  and  Richard  T.  Ely  of  the  University  of 
Wisconsin  understood  well  these  doctrines  and  accepted 
them. 

The  manufacturers,  the  working  men  of  Wisconsin 
and  the  men  who  understood  the  Wisconsin  idea,  went 
even  further  than  this.  They  bethought  themselves  of 
the  scheme  used  in  the  railroad  commission  act,  in  the 


LABOR,   HEALTH  AND   PUBLIC  WELFARE  163 

public  utility  law  and  all  other  similar  legislation.  If 
you  can  make  a  standard  of  reasonableness  to  fix  a  rate 
upon  railroads,  and  then  establish  a  body  of  men  to  see 
that  the  rate  is  carried  out,  why  can  you  not  apply  the 
same  thing  to  health,  life  and  the  sanitation  of  our  fac- 
tories? So  they  passed  the  industrial  commission  act 
and  gave  to  the  industrial  commission  the  administra- 
tion of  this  work.  This  act,  instead  of  specifying  one 
hundred  and  one  different  kinds  of  belts,  nuts  and 
screws  which  might  cause  injury,  requires  all  factories 
and  places  of  employment  to  be  reasonably  safe  and 
hygienic. 

The  law  is  considered  by  many  the  greatest  piece 
of  legislation  yet  put  forth  in  Wisconsin,  and  one  which 
may  be  a  long  stride  toward  the  solution  of  the  whole 
industrial  accident  problem  in  America.  Many  hu- 
mane manufacturers  willing  to  do  much  for  the  better- 
ment of  conditions  of  life  and  health,  are  irritated  by 
legislation  good  in  its  intention  but  so  awkward  in  its 
construction  as  to  be  practically  unworkable.  The  fix- 
ing of  standards  of  life  and  health  is  just  as  easy  as  the 
fixing  of  valuations  for  rates  of  the  price  of  gas  or  any 
other  utility,  and  it  is  much  better  for  the  manufacturer 
and  the  public  at  large  that  there  be  some  scientific  or 
expert  service  in  the  standardization.  This  in  itself 
would  seem  to  be  a  cure  for  a  large  part  of  the  lobbying 
which  is  now  done  in  the  legislative  halls.  A  new  in- 


1 64  THE   WISCONSIN  IDEA 

vention  often  makes  it  impossible  for  the  manufacturer 
to  obey  some  inflexible  and  awkward  law,  whereas  a 
body  of  scientific  men  who  can  fix  standards,  and  re- 
quire safety  devices  which  are  workable,  is  much  more 
practical.  These  experts  can  provide  a  museum  of 
safety  devices  all  of  which  are  tested  and  require  the 
employer  to  use  such  devices.  Think  too,  of  the  saving 
in  insurance.  The  reduction  of  the  cost  of  the  maimed, 
killed  and  wounded  in  any  mutual  insurance  company 
will  show  whether  the  system  is  to  be  a  success  or  failure. 
The  actuarial,  technical  experience  gained  in  this  way 
will  be  of  great  use  in  cheapening  the  actual  insurance 
in  the  workmen's  compensation  act  besides  providing  for 
the  prevention  of  accidents  and  more  humane  and  better 
conditions. 

The  following  excerpts  from  the  law  will  indicate  how 
it  approaches  the  general  form  of  the  railroad  commis- 
sion and  public  utility  acts.  It  fixes  certain  standards 
for  the  commission  to  administer,  throws  the  burden  of 
proof  upon  those  who  object  to  its  decisions,  and  pro- 
vides a  very  simple  procedure. 

"  Section  2394-41.  (2)  The  term  '  employment '  shall  mean 
and  include  any  trade,  occupation  or  process  of  manufacture,  or 
any  method  of  carrying  on  such  trade,  occupation,  or  process  of 
manufacture  in  which  any  person  may  be  engaged,  except  in  such 
private  domestic  service  or  agricultural  pursuits  as  do  not  involve 
the  use  of  mechanical  power.  .  .  . 


LABOR,   HEALTH  AND  PUBLIC   WELFARE  165 

"  Section  2394-48.  Every  employer  shall  furnish  employment 
which  shall  be  safe  for  the  employees  therein  and  shall  furnish  a 
place  of  employment  which  shall  be  safe  for  employees  therein  and 
for  frequenters  thereof  and  shall  furnish  and  use  safety  devices 
and  safeguards,  and  shall  adopt  and  use  methods  and  processes 
reasonably  adequate  to  render  such  employment  and  place  of 
employment  safe,  and  shall  do  every  other  thing  reasonably  neces- 
sary to  protect  the  life,  health,  safety  and  welfare  of  such  em- 
ployees and  frequenters. 

"  Section  2394-49.  i.  No  employer  shall  require,  permit  or 
suffer  any  employee  to  go  or  be  in  any  employment  or  place  of  em- 
ployment which  is  not  safe,  and  no  such  employers  shall  fail  to 
furnish,  provide  and  use  safety  devices  and  safeguards,  or  fail  to 
adopt  and  use  methods  and  processes  reasonably  adequate  to 
render  such  employment  and  place  of  employment  safe,  and  no 
such  employer  shall  fail  or  neglect  to  do  every  other  thing  reason- 
ably necessary  to  protect  the  life,  health,  safety  or  welfare  of  such 
employees  and  frequenters ;  and  no  such  employer  or  other  person 
shall  hereafter  construct  or  occupy  or  maintain  any  place  of  em- 
ployment that  is  not  safe."  .  .  . 

The  commission  is  empowered :  — 

"  Section  2394-52.  (3)  To  investigate,  ascertain,  declare  and 
prescribe  what  safety  devices,  safeguards  or  other  means  or 
methods  of  protection  are  best  adapted  to  render  the  em- 
ployees of  every  employment  and  place  of  employment  and  fre- 
quenters of  every  place  of  employment  safe,  and  to  protect  their 
welfare  as  required  by  law  or  lawful  orders,  and  to  establish  and 
maintain  museums  of  safety  and  hygiene  in  which  shall  be  ex- 
hibited safety  devices,  safeguards,  and  other  means  and  methods 
for  the  protection  of  life,  health,  safety,  and  welfare  of  employees. 


1 66  THE    WISCONSIN  IDEA 

"  (4)  To  ascertain  and  fix  such  reasonable  standards  and  to 
prescribe,  modify  and  enforce  such  reasonable  orders  for  the 
adoption  of  safety  devices,  safeguards  and  other  means  or  methods 
of  protection  to  be  as  nearly  uniform  as  possible,  as  may  be  neces- 
sary to  carry  out  all  laws  and  lawful  orders  relative  to  the  pro- 
tection of  the  life,  health,  safety  and  welfare  of  employees  in  em- 
ployments and  places  of  employment  or  frequenters  of  places  of 
employment. 

"  (5)  To  ascertain,  fix  and  order  such  reasonable  standards 
for  the  construction,  repair  and  maintenance  of  places  of  employ- 
ment as  shall  render  them  safe. 

"  (6)  To  investigate,  ascertain  and  determine  such  reasonable 
classifications  of  persons,  employments  and  places  oft  employment 
as  shall  be  necessary  to  carry  out  the  purposes  of  sections  2394-41 
to  2394-71,  inclusive.  .  .  . 

"  Section  2394-59.  2.  Every  order  of  the  commission  shall, 
in  every  prosecution  for  violation  thereof,  be  conclusively  pre- 
sumed to  be  just,  reasonable  and  lawful,  unless  prior  to  the  insti- 
tution of  prosecution  for  such  violation  an  action  shall  have  been 
brought  to  vacate  and  set  aside  such  order,  as  provided  in  section 
2394-68  of  the  statutes." 

The  mutual  insurance  portion  of  the  workmen's  com- 
pensation is  that  which  makes  it  really  powerful  and  in 
the  end,  economical  and  just.  Every  state  in  this 
country  adopting  a  workmen's  compensation  law  will 
have  to  provide  some  such  arrangement  before  thoroughly 
good  results  can  be  obtained. 

The  following  extract  from  the  report  of  the  committee 
is  given  at  length  because  of  the  great  importance  of  this 
feature. 


LABOR,    HEALTH  AND   PUBLIC   WELFARE  167 

"  Industrial  insurance  is  the  name  most  commonly  applied  to 
workmen's  compensation  acts,  and  conveys  the  meaning  that  there 
is  some  plan  of  insurance.  In  the  first  tentative  bills  of  this  com- 
mittee, the  plan  of  insurance  was  brought  forth,  but  after  full  and 
mature  discussion  it  was  decided  that  it  would  be  better  to  leave 
the  employer  free  to  determine  for  himself  the  best  means  of  taking 
care  of  the  liability  created.  The  committee  felt  that  to  lay  down 
a  plan  of  insurance  would  be  to  put  on  a  limitation  that  might 
handicap  employers  and  leave  them  at  the  mercy  of  a  certain  class 
of  insurance  companies.  We  recognize  the  great  benefits  to  em- 
ployees of  what  are  known  as  sick,  accident  and  death  benefit 
societies  now  in  effect  in  many  large  institutions,  and  we  much 
prefer  to  leave  this  whole  matter  open  in  such  a  way  as  to  encour- 
age the  formation  of  these  sick,  accident  and  death  societies. 
Under  section  26  we  have  given  to  employers  an  opportunity  to 
organize,  under  the  laws  of  this  state,  mutual  insurance 
companies  to  carry  the  new  risk.  Strong  mutual  insurance 
companies  clearly  have  been  shown  to  be  the  cheapest,  safest, 
and  most  reliable  method  by  which  the  risk  herein  created 
can  be  taken  care  of." 

In  this  way  it  was  suggested  that  the  German  system 
could  be  carried  out.  By  modifying  an  old  section  of 
the  statute  this  was  easily  established  in  the  law.  The 
provisions  of  the  workmen's  compensation  act  relating 
to  this  most  important  arrangement  both  for  the  economy 
and  the  humanity  of  the  whole  scheme,  is  contained  in 
the  following  section  :  — 

"  Section  2394-26.  Nothing  in  this  act  shall  affect  the  or- 
ganization of  any  mutual  or  other  insurance  company,  or  any 


1 68  THE   WISCONSIN   IDEA 

existing  contract  for  insurance  of  employers'  liability,  nor  the 
right  of  the  employer  to  insure  in  mutual  or  other  companies, 
in  whole  or  in  part,  against  such  liability,  or  against  the  liability 
for  the  compensation  provided  for  by  this  act,  or  to  provide  by 
mutual  or  other  insurance,  or  by  arrangement  with  his  employees, 
or  otherwise,  for  the  payment  to  such  employees,  their  families, 
dependents,  or  representatives,  of  sick,  accident,  or  death  bene- 
fits in  addition  to  the  compensation  provided  for  by  this  act.  But 
liability  for  compensation  under  this  act  shall  not  be  reduced  or 
affected  by  any  insurance,  contribution  or  other  benefit  whatso- 
ever, due  to  or  received  by  the  person  entitled  to  such  compensa- 
tion, and  the  person  so  entitled  shall,  irrespective  of  any  insurance 
or  other  contract,  have  the  right  to  recover  the  same  directly  from 
the  employer ;  and  in  addition  thereto,  the  right  to  enforce  hi  his 
own  name,  in  the  manner  provided  in  this  act,  the  liability  of  any 
insurance  company  which  may,  in  whole  or  in  part,  have  insured 
the  liability  for  such  compensation ;  provided,  however,  that  pay- 
ment in  whole  or  in  part  of  such  compensation  by  either  the  em- 
ployer or  the  insurance  company,  shall,  to  the  extent  thereof,  be 
a  bar  to  recovery  against  the  other  of  the  amount  so  paid,  and  pro- 
vided further,  that  as  between  the  employer  and  the  insurance 
company,  payment  by  either  directly  to  the  employee,  or  to  the 
person  entitled  to  compensation,  shall  be  subject  to  the  conditions 
of  the  insurance  contract  between  them. 

"  Section  2394-27.  Every  contract  for  the  insurance  of  the 
compensation  herein  provided  for,  or  against  liability  therefor, 
shall  be  deemed  to  be  made  subject  to  the  provisions  of  this  act, 
and  provisions  thereof  inconsistent  with  this  act  shall  be  void.  No 
company  shall  enter  into  any  such  contract  of  insurance  unless 
such  company  shall  have  been  approved  by  the  commissioner  of 
insurance,  as  provided  by  law.  For  the  purposes  of  this  act,  each 


LABOR,    HEALTH   AND   PUBLIC   WELFARE  169 

employee  shall  constitute  a  separate  risk  within  the  meaning  of 
section  iSgSd  of  the  statutes." 


It  will  be  noticed  that  it  was  by  making  each  em- 
ployee a  separate  risk  that  the  old  mutual  statute  was 
applied  to  this  act. 

Under  this  section  mutual  companies  are  now  being 
formed  with  a  fair  degree  of  rapidity. 

Here  then,  we  have  two  laws,  the  workmen's  compen- 
sation act  and  the  industrial  commission  act,  based 
upon  the  fundamental  Wisconsin  idea  and  made  prac- 
tical by  the  devices  which  were  used  in  the  railroad  com- 
mission and  the  public  utility  act.  It  will  be  seen  that 
the  same  procedure  by  which  the  aggrieved  party  had 
his  right  in  court  under  the  earlier  commission  acts, 
gave  the  aggrieved  party  that  same  remedy  under  the 
industrial  commission  and  the  workmen's  compensation 
act.  After  all,  it  is  a  court  question,  a  matter  of  con- 
tract just  as  in  the  railroad  and  public  utility  acts.  No 
matter  how  many  rights  may  be  given  the  employee  under 
any  modification  of  the  fellow-servant  or  contributory 
negligence  doctrine,  the  poor  fellow  was  obliged  to  go 
into  court  and  ask  that  compensation  be  given  to  him. 
Delay  was  the  inevitable  result  of  going  into  court.  He 
could  engage  attorneys  to  fight  the  case  for  him  but 
meanwhile  he  could  starve.  The  result  has  been  that 
by  the  constant  appeal  from  court  to  court  and  the 
slowness  of  justice,  the  man  who  apparently  had  justice 


170  THE   WISCONSIN   IDEA 

on  his  side,  never  really  received  it  and  either  had  to 
compromise  or  take  the  moiety  which  was  thrown  to 
him  at  the  end  of  the  litigation.  The  workmen's  com- 
pensation act  is  a  means  of  giving  not  only  a  certain 
remedy  to  the  aggrieved  party  but  it  is  another  example 
of  the  state  standing  behind  the  poorer  man  in  litiga- 
tion and  making  smooth  the  path  for  him  so  that  he 
obtains  justice. 

It  must  not  be  forgotten  that  the  apprenticeship  and 
the  industrial  education  acts  already  mentioned  furnish 
powerful  allies  for  the  above  laws.  A  systematic  attempt 
will  be  made  under  these  acts  to  teach  workers  how  to 
preserve  life  and  health.  Without  the  cooperation  and 
intelligence  of  the  worker  himself,  much  will  be  lest  in 
the  campaign  of  prevention  and  the  legislative  com- 
mittee on  industrial  education  had  this  well  in  mind 
when  they  drafted  the  bills  which  to-day  may  be  called 
a  part  of  the  above  code. 

The  state  has  a  well  organized  Board  of  health  with  a 
vital  statistics  division  which  cooperates  with  the  school 
of  medicine  at  the  university  through  the  experts  and  lab- 
oratories especially  established  for  research  into  disease. 

This  combination  between  the  university  and  the 
Board  of  health  is  leading  to  good  results.  Already  a 
Pasteur  institute  has  been  founded  in  connection  with 
the  state  hygienic  laboratory  at  the  university.  Over 
two  hundred  patients  have  been  treated  there  and  all 


LABOR,   HEALTH  AND  PUBLIC  WELFARE  1 71 

but  one  have  been  saved.  More  than  4250  packages 
of  diphtheria  anti-toxin  have  already  been  distributed 
and  typhoid  anti-toxin  is  now  also  being  dispensed. 
Cooperative  investigations  are  constantly  being  made 
by  these  two  state  organizations. 

Through  the  efforts  of  the  Wisconsin  anti-tuberculosis 
association  a  state  sanatorium  for  consumptives  was 
established  and  at  the  1911  session  of  the  legislature  a 
law  granting  state  aid  for  a  county  system  of  sana- 
toriums  was  put  upon  the  statute  books  and  the  Board 
of  health  is  making  strong  efforts  to  effectually  enforce 
it.  A  medal  which  was  offered  by  the  International 
anti-tuberculosis  association  to  the  state  or  country 
having  the  best  law  for  the  prevention  or  control  of 
tuberculosis  was  awarded  Wisconsin  in  1908.  The  Board 
of  control  with  its  system  for  the  care  of  insane  and 
criminal  and  delinquent  classes  has  been  used  as  a  model 
for  several  states  and  is  on  a  high  plane.  Dairy  and  food 
laws  have  contributed  to  the  cleanliness  and  quality  of  the 
dairy  industry  of  the  state  and  have  assured  state  protec- 
tion in  the  matter  of  food  products.  J.  Q.  Emery,  the  dairy 
and  food  commissioner,  fortified  by  chemists  from  the 
university,  has  stood  without  flinching,  a  fire  of  criticism 
perhaps  as  great  in  a  way  as  that  directed  at  Dr.  Wiley. 
The  state  has  expended  large  sums  in  all  these  lines 
-but  it  has  been  well  used.  Every  cent  of  it  is  an 
investment  which  is  now  yearly  bringing  back  many 
times  its  amount. 


CHAPTER  VH 

ADMINISTRATION 

IT  may  seem  strange  at  first  glance  that  the  system 
of  appointive  offices  meets  with  so  much  approval  in  a 
state  where  there  is  such  confidence  in  democracy  and 
where  the  direct  primary  election  is  in  favor.  This  is 
easily  explained;  the  primary  election  is  practically 
applied  only  to  the  executive  officers  and  to  those  who 
legislate  and  formulate  policies.  The  fact  that  the  in- 
surance commissioner  has  been  made  an  appointive 
officer  and  that  the  election  of  judges  and  state  super- 
intendent of  public  instruction  does  not  coincide  with 
the  regular  political  elections,  together  with  the  efforts 
which  doubtless  will  be  made  in  the  near  future  to  with- 
draw the  attorney-general,  the  secretary  of  state  and 
the  state  treasurer  from  political  elections,  shows  that 
the  people  are  slowly  working  towards  a  distinction 
between  those  who  determine  a  policy  and  those  who 
are  chosen  for  administrative  or  technical  skill  —  as 
servants  merely  to  carry  out  the  will  of  the  people  as 
expressed  in  the  law.  Thus  the  appointive  commission 
is  an  aid  to  democracy.  There  is  no  inconsistency  in 
these  two  principles. 

172 


ADMINISTRATION  173 

Although  the  principles  of  the  short  ballot  have  not 
been  acknowledged  in  this  state,  the  generally  accepted 
principle  has  been  that  the  legislature  determines  largely 
what  is  to  be  done  and  delegates  the  administration  to 
some  technical  or  scientific  body.  The  apjppintive  com- 
mission is  an^ssentig.Hn  the  Wisconsin  jHe,fl.  As  a  rule 
these  commissions  are  non-partisan  or  bi-partisan.  They 
are  appointed  for  long  periods  of  time,  receive  good 
salaries  and  are  given  expert  help.  In  very  many  cases, 
these  commissions  are  permitted  to  fix  the  salaries  of 
their  employees  thus  further  centralizing  responsibility 
with  these  bodies.  They  are  protected  also  —  and  this 
is  a  very  important  point — by  continuing  appropriations. 

The  commissions  are  seldom  paid  small  salaries ;  they 
are  either 

(1)  well  paid;  or 

(2)  not  paid  at  all. 

Well  paid  commissions,  composed  of  men  of  talent 
and  honorary  or  ex-officio  commissions  with  expert 
help,  have  proven  successful  but  when  the  compensa- 
tion is  small,  the  service  is  hampered  by  inefficient  men. 
The  writer  well  remembers  one  case  in  the  legislature 
when  a  small  group  of  men  attempted  to  fix  the  salaries 
of  a  commission  just  low  enough  so  that  very  good  men 
could  not  be  secured  and  yet  just  high  enough  to  pro- 
vide jobs  which  they  themselves  could  afford  to  accept. 


174  THE   WISCONSIN  IDEA 

Unfortunately,  there  are  still  some  commissions  of  this 
kind  but  they  are  rapidly  disappearing. 
/^  Good  laws  are  ineffective  unless  accompanied  by  good 
^administration.  Good  administration  is  impossible  un- 
less combined  with  ordinary  business  methods  and  the 
latter  are  not  compatible  with  the  policy  "to  the  victors 
belong  the  spoils."  If  any  praise  is  due  the  Wisconsin 
laws  it  is  probably  because  of  the  appointive  commis- 
sions, the  non-partisan  spirit,  the  expert  and  the  effective 
civil  service  law.  The  non-partisan  spirit  has  become  a 
tradition.  In  an  overwhelming  republican  state,  at  one 
time  the  chairman  of  the  civil  service  commission,  the 
chairman  of  the  tax  commission  and  the  chairman  of 
the  railroad  commission  were  democrats.  Of  the  mem- 
bers of  the  supreme  court  the  majority  are,  perhaps, 
democrats.  The  civil  service  law  and  the  non-partisan 
spirit  are  inherent  in  the  very  life  of  the  state  of  Wis- 
consin, therefore  it  is  not  surprising  that  congressmen 
and  United  States  senators  from  this  state  have  carried 
the  same  spirit  into  national  affairs  and  are  found  fre- 
quently "lining  up"  with  one  party  or  the  other,  as  the 
issue  demands. 

It  is  very  natural,  considering  all  the  facts  previously 
considered,  that  civil  service  should  be  a  doctrine  of  the 
state  of  Wisconsin. 

The  German  believes  in  merit.  During  the  session  of 
1911,  when  certain  members  tried  to  repeal  the  civil 


ADMINISTRATION  175 

service  law,  members  from  the  German  districts  upheld 
it  strongly.  One  of  the  assemblymen  from  Milwaukee 
said,  "We  Germans  believe  in  civil  service;  we  believe 
in  merit  and  fitness;  we  believe  that  men  should  be 
educated  for  administrative  duties;  we  do  not  like 
'pull'  in  state  business."  There  is  no  doubt  but  that 
the  German  prefers  attaining  public  office  under  civil 
service  to  any  other  method.  It  is  strange  but  true, 
that  in  the  German  state  of  Wisconsin,  a  German  gov- 
ernor has  never  been  elected,  as  the  old  German  stock 
in  general  dislikes  political  strife  and  wire  pulling.  The 
German  believes  that  public  officials  should  be  educated 
so  we  have  a  great  basis  for  civil  service  principles  in 
the  temperament  of  the  state. 

The  power  of  the  commissions  as  herein  outlined  must 
seem  to  the  reader  to  be  fraught  with  danger.  Cen- 
tralized machinery  has  been  dangerous  in  the  past  and 
continues  to  be  so  unless  the  temptation  for  political 
juggling  is  removed.  Such  concentration  of  power 
should  not  take  place  without  the  addition  of  the  non- 
partisan  spirit  and  an  efficient  civil  service.  Any  state 
which  may  wish  to  follow  Wisconsin  by  adopting  its 
highly  centralized  plan  is  hereby  warned  in  order  that 
they  may  have  proper  conditions  in  which  to  establish 
a  scheme  which  gives  so  much  power  into  the  hands  of 
a  few  experts.  Suppose  after  having  planned  these  elabo- 
rate laws  calling  for  statisticians,  accountants,  actuarial 


176  THE   WISCONSIN  IDEA 

experts  and  skilled  workers  of  all  kinds,  that  there  was 
no  standard  fixed  for  these  men.  Suppose  that  the 
politician  says  to  a  commission  that  he  knows  of  a  good 
accountant  who  is  a  good  political  worker  it  is  true,  but 
who  has  worked  in  an  accounting  office  and  hence  had 
better  be  employed ;  it  can  readily  be  seen  that  the  ad- 
ministration of  these  laws  might  be  a  farce  and  that  the 
offices  would  be  vacant  after  every  political  election. 
If  the  Wisconsin  program  is  to  be  followed,  it  must  be 
taken  in  its  entirety  or  not  at  all.  If  power  is  granted 
at  all,  it  must  be  given  in  liberal  doses  in  order  that 
there  may  be  efficiency.  Mark  well  every  step  in  this 
matter.  The  commissions  are  so  constituted  and  the 
terms  of  the  members  are  so  arranged  that  no  two  of 
them  retire  within  the  same  year;  they  are  thus  pro- 
tected from  the  desires  of  any  one  governor.  They  are 
restricted  by  carefully  worked  out  methods  of  book- 
keeping and  publicity  and  are  hedged  about  by  strict 
civil  service  requirements  and  if  positions  of  an  expert 
nature  are  exempted,  they  are  carefully  selected  and 
exemption  is  grudgingly  granted  by  the  legislature  only 
on  the  grounds  of  great  necessity  and  upon  convincing 
evidence  as  to  this  necessity. 

It  may  seem  that  this  is  a  complicated  and  costly 
system  of  government,  an  undemocratic,  bureaucratic 
government  and  as  such  criticisms  are  not  without  real 
value,  the  whole  subject  demands  some  frank  discussion. 


ADMINISTRATION  177 

There  is  no  infallible  kind  of  government.  Commissions 
do  not  depend  merely  upon  the  men  but  also  upon  the 
checks  and  spurs  which  sustain  the  integrity  of  the 
whole  system.  If  it  is  a  scheme  although  seemingly 
contrary  to  our  ideas  of  democracy,  which  really  carries 
out  absolutely  and  surely  the  will  of  the  people,  it  is  an 
aid  to  democracy.  How  in  this  complex,  economic  life 
are  we  ever  going  to  use  any  other  machinery  ?  We  have 
tried  to  fix  tariff  rates  by  congress  and  we  have  found 
that  with  the  little  time  and  knowledge  possessed  by 
each  member,  with  the  juggling  of  interests  throughout 
the  country,  it  seems  an  impossibility.  If  rates  are 
being  fixed  in  the  chaos  and  hurry  of  the  legislative 
session,  is  it  any  wonder  that  the  courts  have  to  inter- 
pret and  many  times  destroy  the  results  of  this  guess 
work?  Is  it  any  wonder  that  the  business  man  is 
afraid  of  a  legislative  session  when  every  bolt  or  screw 
in  his  machinery  may  be  regulated  by  impractical  laws 
or  matters  of  actuarial  skill  be  determined  in  a  few 
moments  in  a  legislative  committee,  or  the  price  of  gas 
or  some  other  thing  equally  scientific,  regulated  in  an 
equally  crude  manner  ? 

Such  a  system  cannot  survive  and  it  is  merely  a 
question  of  what  system  shall  supplant  it.  That  we 
will  have  to  use  a  commission  system  of  some  sort  is 
shown  by  the  ordinary  business  arrangements  of  life. 
If  a  city  owned  a  municipal  baseball  team,  imagine 


178  THE   WISCONSIN   IDEA 

the  city  holding  a  public  election  to  elect  a  second 
baseman  or  attempting  to  fix  certain  items  of  bats  and 
balls !  The  only  sensible  way  would  be  for  the  city 
to  determine  whether  or  not  it  would  have  a  baseball 
team,  to  set  the  necessary  limit  upon  expenditures  for 
such  a  team  and  to  direct  the  council  executing  the 
will  of  the  people,  to  secure  a  manager  who  would  be 
the  responsible  director.  Any  common  experience  in 
life  illustrates  the  same  principle.  We  must  have  an 
administrator  for  any  special  line  of  endeavor  and  give 
to  him  the  responsibility ;  commission  government  seems 
to  be  the  best  method  to  extend  the  legislative  power 
scientifically,  and  the  only  way  also  of  using  judicial 
determination  in  great  economic  questions  confronting 
the  people.  Dislike  it  as  we  may,  we  will  have  to 
employ  it  nevertheless  —  and  that  more  and  more 
frequently  as  economic  life  becomes  more  complex. 
Indications  are  that  legislation  for  the  future  on  great 
economic  questions  will  be  based  upon  a  broad  deter- 
mination of  policies  by  a  legislative  body,  the  carrying 
out  of  which  will  be  intrusted  to  efficient  servants  and 
experts,  responsible  in  every  manner  to  the  representa- 
tives of  the  people  and  the  people  in  general. 

There  is  a  form  of  government  still  existing  here  and 
there  in  the  world  whkh  gradually  is  being  discarded 
for  the  good  of  all  mankind  —  that  of  the  unlimited 
monarchy.  There  have  been  good  and  great  kings  who 


ADMINISTRATION  179 

have  accomplished  as  much  or  perhaps  more  than  any 
republic  but  the  good  king  died,  a  tyrant  succeeded  him 
and  the  nation  retrograded.  The  individual  may  have 
been  right  but  the  system  as  a  system,  covering  a  long 
period  of  time,  was  wrong.  The  same  thing  is  true  of 
this  growth  of  commissions.  They  should  be  circum- 
scribed by  all  the  checks  and  balances  of  representative 
government.  If  great  power  is  given  to  them  they 
should  be  restricted  and  made  so  accountable  to  the 
people  and  their  representatives  that  if  they  are  weak 
or  inefficient  the  machinery,  like  that  of  a  republic  itself, 
will  be  so  well  constructed  that  it  will  tide  over  such  a 
condition  until  better  men  can  be  secured.  A  newly 
appointed  commission  is  usually  stronger  than  one  more 
firmly  established  —  when  its  fight  has  been  won.  It  is 
well  then  to  remember  that  in  its  creation,  its  powers 
should  be  closely  defined  and  safe  guarded,  so  that  it 
has  a  continuing  strength  not  wholly  dependent  on  the 
personality  of  the  commissioners  and  yet  is  so  checked 
that  the  white  light  of  public  opinion  may  penetrate  into 
its  innermost  recesses  at  any  time.  If  all  the  eggs  are 
placed  in  one  basket,  it  is  well  to  watch  that  basket. 

The  commission  plan  is  not  perfect  in  the  opinion  W 
the  author  and  he  has  stood  almost  alone  in  advocatingx 
certain  additions  and  restrictions.     In  spite  of  vigilance, 
the  stiffness  and  red  tape  of  the  bureau  may  eventually 
appear.     Commissioners  may  in  time  have  a  tendency 


l8o  THE   WISCONSIN   IDEA 

toward  making  their  decisions  come  so  safely  within  the 
decisions  of  the  courts  that  no  litigation  results,  because 
the  persons  affected  are  satisfied  —  sometimes  too  well 
satisfied.  Justice  is  sometimes  more  thorough  when  it 
involves  conflict  and  it  is  a  healthy  sign  to  see  cases 
contested  in  the  courts  once  in  a  while,  with  the  com- 
missioners on  the  one  side  and  great  corporations  on  the 
other.  Of  course,  public  sentiment  bearing  upon  the 
commissions  may  make  them  somewhat  arbitrary  in  their 
methods.  If  so,  the  courts  will  protect  the  corporations 
involved.  But  if  a  legislative  law  or  a  rule  of  a  com- 
mission is  always  modified  so  that  it  comes  within  the 
court  decisions  and  precedents,  no  progress  will  ever  be 
made  for  real  justice  —  indeed,  it  will  result  in  a  gradual 
retrogression  and  in  the  end,  confidence  in  the  system 
will  be  lost.  There  are  certain  kinds  of  progression  in 
legislation,  the  results  of  which  in  relation  to  constitu- 
tionality as  construed  by  the  courts  we  cannot  fore- 
tell and  occasionally  there  must  be  encroachment  upon 
precedent  so  that  the  subject  may  come  before  the  courts 
in  as  good  an  economic  light  as  possible.  Similarly, 
there  are  certain  decisions  in  commissions  which  have  to 
be  made  boldly  so  that  the  aggrieved  parties  will  use 
their  entire  powerful  machinery  in  the  court.  The 
writer  believes  this  to  be  a  wholesome  process  and  no 
commission  should  be  afraid  to  boldly  progress  so  that 
occasionally  its  decisions  will  be  submitted  to  the  courts. 


ADMINISTRATION  l8l 

Again,  while  some  commissions  may  grow  sluggish, 
others  may  be  inclined  to  become  arrogant  and  bureau- 
cratic towards  their  masters  —  the  people.  There  should 
be  some  means  whereby  commissions  may  be  called 
before  the  legislature  in  the  same  manner  in  which  mem- 
bers of  the  English  cabinet  are  subjected  to  questions  or 
interpellation  in  the  British  parliament. 

Sir  Courtenay  Ilbert,  in  his  book  "Parliament;  its 
History,  Constitution  and  Practice,"  1911,  p.  113,  says 
of  this  device :  — 

"  Asking  questions  in  the  house  is  one  of  the  easiest  methods 
by  which  a  member  can  notify  to  his  constituents  the  attention 
which  he  devotes  to  public  affairs  and  to  their  special  interests. 
For  this  and  other  reasons,  the  right  to  ask  questions  is  specially 
liable  to  abuse,  and  its  exercise  needs  careful  supervision  by  the 
Speaker  and  those  acting  under  this  authority.  But  there  is  no 
more  valuable  safeguard  against  maladministration,  no  more 
effective  method  of  bringing  the  searchlight  of  criticism  to  bear 
on  the  action  or  inaction  of  the  executive  government  and  its  sub- 
ordinates. A  minister  has  to  be  constantly  asking  himself,  not 
merely  whether  his  proceedings  and  the  proceedings  of  those  for 
whom  he  is  responsible  are  legally  or  technically  defensible,  but 
what  kind  of  answer  he  can  give  if  questioned  about  them  in  the 
house,  and  how  that  answer  will  be  received." 

A  proceeding  of  this  kind  would  be  a  protection  to 
both  the  commission  and  the  public.  The  writer  has 
often  heard  some  legislator  questioning  the  wisdom  of 
commission  administration  because  of  derogatory  state- 


1 82  THE   WISCONSIN   IDEA 

ments  and  criticisms  which  had  been  presented  to.  him. 
If  asked  why  he  does  not  go  directly  to  the  commission 
and  find  the  truth,  he  invariably  replies  that  when  he 
did  go  to  that  office  he  met  a  crowd  of  experts  who 
could  prove  anything  to  him  and  things  were  so  com- 
plicated that  he  only  made  a  fool  of  himself.  This  man 
however,  would  feel  much  stronger  if  we  adopted  the 
European  policy  and  called  the  commission  before  the 
legislature.  He  would  be  bold  and  they  would  be  on 
the  defence.  As  Sir  Arthur  Cunningham  of  the  British 
home  office  remarked  to  the  writer,  "If  old  Maggie 
Malone  of  County  Cork  does  not  receive  her  old  age 
pension  we  may  be  called  upon  to  give  the  reason." 
The  author  witnessed  John  Burns  undergoing  a  severe 
test  before  parliament  one  day  and  consequently  has 
great  respect  for  the  question  as  a  vigorous  expedient 
to  apply  to  some  of  these  new  commissions  which  are 
coming  into  existence,  not  only  in  Wisconsin  but  all 
over  the  country. 

In  the  case  of  the  proposed  Interstate  trade  commis- 
sion, supplementing  the  Sherman  anti-trust  act,  the 
members  should  be  subject  to  recall  by  a  majority  vote 
of  congress.  It  is  the  belief  of  the  author  that  sooner 
or  later  such  a  plan  will  be  developed  in  addition  to  the 
program  which  has  been  laid  down  in  Wisconsin.  When 
all  is  said,  there  is  no  sure  cure-all  in  commissions.  It  is 
a  good  thing  once  in  a  while  —  not  too  often  —  for  the 


ADMINISTRATION  183 

legislature  to  overturn  their  rulings.  It  keeps  them 
active  and  vigilant,  for  there  is  a  wisdom  in  the  multi- 
tude which  is  greater  in  the  long  run,  than  that  of  any 
body  of  experts  or  judges.  In  the  legislature  there  is  a 
certain  wisdom  and  as  a  result,  bulwarks  have  been 
built  up  for  the  liberty  of  the  human  race  which  no  doc- 
trinaire theory  of  law  or  no  worn-out  precedent  can  give. 
Our  common  law,  in  a  broad  sense,  came  from  the  cus- 
toms of  the  people  and  it  is  significant  that  in  the  estab- 
lishment of  the  modern  machinery,  which  is  really  put- 
ting into  practice  the  truest  ideals  of  the  common  law, 
there  has  been  more  real  virility  and  strength  in  legisla- 
tive enactment  than  there  has  been  in  the  wisdom  of 
judges. 

When  one  pauses  to  consider  the  long  line  of  sufferers 
from  accidents  who  have  come  into  the  courts  of  America 
and  remained  there  for  years,  the  long  litigation  over 
the  trusts  and  almost  every  right  which  is  possessed  by 
the  people  to-day  in  theory  and  not  in  fact,  can  we  say 
that  the  judges  have  been  wise,  or  that  the  American 
legislature  has  been  unwise  ?  It  is  true  that  in  thinking 
of  the  learning  and  ability  of  the  judges  we  may  be 
tempted  to  say  "Here  are  men  versed  in  the  law;  why 
not  turn  the  matter  over  to  them?"  There  are  men  in 
our  legislative  halls  and  our  colleges  who  believe  that 
the  only  legislation  is  that  made  by  the  judges.  Upon 
looking  over  this  whole  situation  it  seems  that  we  should 


1 84  THE   WISCONSIN  IDEA 

have  renewed  confidence  in  the  legislature  and  the  people. 
After  all,  there  may  be  some  truth  in  what  Talleyrand 
said  to  Napoleon:  "There  is  somebody  wiser  than  you, 
Napoleon  and  wiser  than  all  your  councillors ;  and  that 
is  everybody."  And  if  we  in  America  do  not  believe  it, 
we  do  not  believe  in  representative  government.  The 
same  general  principles  apply  to  any  small  body  how- 
ever expert  it  may  be.  As  John  Morley  says  in  his 
"Essay  upon  Guicciardini "  :  — 

"  It  is  not  merely  the  multitude  on  whose  wisdom  you  cannot 
count.  .  .  .  Perhaps  Burke  comes  nearest  to  the  mark :  —  '  Man 
is  a  most  unwise  and  a  most  wise  being.  The  individual  is  foolish. 
The  multitude  for  the  moment  is  foolish,  when  they  act  without 
deliberation ;  but  the  species  is  wise,  and  when  time  is  given  to  it, 
as  a  species  it  almost  always  acts  right.' ' 

The  history  of  the  past,  the  philosophy  upon  which 
this  nation  is  founded  should  teach  us  the  futility  of 
placing  in  the  hands  of  any  group  of  men,  power  with- 
out responsibility  and  direct  accountability.  As  experts 
they  are  entitled  to  protection  and  as  we  cannot  well 
elect  experts,  we  must  select  them  but  their  work  must 
always  be  subject  to  the  great  common  sense  which  was 
recognized  by  the  fathers  as  existing  in  popular  control. 

No  state  should  attempt  the  regulation  herein  de- 
scribed without  securing  the  highest  type  of  public 
servant  to  do  the  work  and  it  must  expect  to  pay  well 
for  it. 


ADMINISTRATION  185 

To  adopt  the  Wisconsin  plan  of  controlling  the  vast 
interests  which  are  included  in  these  laws,  while  at  the 
same  time  paying  starvation  salaries  for  experts,  would 
be  to  invite  failure  from  the  moment  that  these  laws 
were  enacted.  Nothing  in  political  life  to-day,  in  the 
opinion  of  the  writer,  has  done  more  to  bring  ineffi- 
ciency in  public  service  everywhere  than  the  poor 
salaries  paid.  We  are  wondering  why  the  state  cannot 
be  as  efficient  as  a  private  concern  when  the  private 
corporation  will  pay  three  times  the  amount  for  like 
service  in  public  life.  No  civil  service  law  however  good, 
can  cure  inefficiency  coming  from  this  source.  A  state 
can  never  make  something  out  of  nothing.  Not  only 
the  poor  salaries  paid  but  the  poor  adjustment  of  salaries 
is  a  contributing  cause.  In  Wisconsin  fortunately,  the 
great  commissions  have  to  a  great  degree  the  power  to 
fix  the  salaries  of  experts  and  this  has  been  the  means 
of  securing  much  efficiency.  If  we  give  responsibility 
to  commissioners,  surely  we  ought  to  trust  their  judg- 
ment sufficiently  to  allow  them  to  fix  the  salaries  accord- 
ing to  ability.  In  the  minor  ranks  of  expert  ability 
also,  something  will  have  to  be  done  throughout  our 
government  to  attract  to  the  public  service  the  same 
efficiency  which  enters  into  private  business. 

If  private  business  can  afford  retirement  funds  for  old 
men,  surely  it  would  be  a  good  investment  for  the  gov- 
ernment to  have  something  similar.  If  it  is  not  good 


1 86  THE  WISCONSIN  IDEA 

policy  for  the  private  industry  to  retain  old  men  and  wo- 
men, worn  out  in  office  service  and  hindering  quick,  effi- 
cient results,  neither  is  it  good  business  for  the  government. 
Efficiency  demands  the  best  and  public  servants  should 
be  as  well  protected  as  private  servants.  Some  kind  of 
promotion  in  every  rank  of  public  service  should  come 
if  public  efficiency  is  to  equal  that  in  private  service. 
How  ridiculous  it  is  for  congress  or  any  state  to  strive 
to  fix  the  salaries  for  the  different  clerks  in  different 
departments  by  legislative  action  and  yet  hold  the  com- 
missions responsible  for  the  work  of  these  clerks !  If  a 
great  commission  is  capable  of  fixing  the  rates  for  gas 
or  electricity,  surely  it  is  equally  capable  of  fixing  the 
salaries  of  a  clerk  or  a  stenographer,  especially  when 
restricted  by  a  civil  service  law. 

Fundamental  to  the  responsible  commission  and  to  all 
good  administration  of  our  laws  is  a  study  of  the  prin- 
ciples of  administration.  Our  young  men  must  be  trained 
for  public  service  as  in  the  European  countries.  That 
there  is  a  science  of  administration  has  been  seemingly 
unknown  to  the  American  public  until  very  recently. 
How  could  it  be  otherwise  with  the  doctrine  of  the  spoils- 
man as  the  most  important  thing  in  our  public  life? 
The  sense  of  duty,  permanency  and  scientific  methods 
in  office  had  to  be  realized  first.  This  realization  was 
brought  about  through  the  education  of  the  people. 

Few  of  us  realize  to  what  extent  preparations  are 


ADMINISTRATION  187 

made  for  legislation  in  Germany.  A  recent  statement 
by  one  of  the  Prussian  statesmen  shows  that  half  the 
members,  not  only  of  the  imperial  parliament  but  also 
of  the  various  state  parliaments,  were  men  who  had 
received  some  training  for  their  work  and  most  of  the 
officers,  in  fact  nearly  all  of  the  administrative  officers 
in  Germany,  are  especially  educated  for  this  important 
work. 

The  German  university  is  the  usual  channel  through 
which  this  training  is  acquired,  whereas  in  America  the 
university  man  is  sometimes  looked  at  askance  if  he 
utters  an  opinion  upon  a  public  question.  In  Germany, 
says  a  recent  report  from  the  German  minister  of  educa- 
tion, it  is  the  duty  of  the  university  "to  give  opinions  of 
all  kinds  regarding  scientific  questions  falling  within  their 
province,  or  for  working  out  important  problems  con- 
cerning public  life."  It  is  not  surprising  then,  that  the 
expert  is  welcome  in  a  state  like  Wisconsin  where  Ger- 
manic standards  and  Teutonic  blood,  whether  Scandi- 
navian or  German,  are  so  prevalent. 

The  science  of  administration  seems  only  to  have 
begun  in  America.  The  pioneer  work  done  by  the  New 
York  bureau  of  municipal  research,  which  is  influencing 
many  of  the  cities  of  the  country  and  is  now  touching 
the  federal  government  through  the  Bureau  of  efficiency 
and  economy  under  the  efficient  management  of  Dr. 
Frederick  A.  Cleveland,  shows  us  a  new  field  for  the 


188  THE  WISCONSIN  IDEA 

expert;  the  expert  in  investigation  as  well  as  in  the 
preparation  and  the  administration  of  laws.  If  there  is 
one  thing  which  the  Ely  school  of  economics  seems  to 
have  brought  into  our  life  it  is  the  spirit  of  the  German 
school,  which  inspires  one  to  look  not  to  theory  but  to 
the  actual  affairs  of  economic  life.  So  we  are  looking 
for  advice  now,  not  from  discredited  followers  of  the 
old  theory  of  the  classic  school  but  to  the  teachings  of 
men  like  John  R.  Commons,  B.  H.  Meyer  or  Richard 
T.  Ely.  It  is  true  that  we  are  not  changing  rapidly 
enough  and  that  we  are  too  prone  to  take  the  advice 
of  the  undiluted  type  of  professor  of  the  old  school  who 
has  not  been  tried  in  the  laboratory  of  public  life  and 
who  often  proves  to  be  a  dangerous  man.  He  who  is 
lost  in  his  theories  is  often  as  bad  an  advisor  as  the 
most  corrupt  politician;  his  guidance  often  leads  into 
realms  in  which  there  is  no  real  knowledge  and  which 
bear  no  practical  relations  to  real  life.  A  reasonable 
hesitancy  in  choosing  an  expert  at  the  present  time  will 
accomplish  a  great  deal  for  good  government.  The  land 
is  full  of  men  with  doctrinaire  theories  who  have  never 
studied  the  actual  problems  of  government  at  first  hand 
and  who,  if  received  with  open  arms,  may  do  so  much 
harm  to  the  work  of  the  real  student  of  government 
that  a  serious  retrogression  will  occur  in  the  construc- 
tion of  any  science  of  administration.  A  so-called  expert 
who  has  not  given  time  and  attention  to  economic  ques- 


ADMINISTRATION  189 

tions  at  first  hand  and  who  does  not  possess  the  very 
necessary  elements  of  common  sense,  should  be  shunned 
by  every  true  student  of  government.  There  is  no  royal 
road  to  true  helpfulness  —  the  scholar  must  become 
useful  by  strenuous  application  and  be  able  to  prove 
his  theories  by  the  hard  facts  of  actual  events.  Says  a 
recent  article  in  the  Atlantic  Monthly:  — 

"  Plato  has  well  stated  the  expert's  view  of  the  matter  in  saying 
that  when  you  want  to  take  ship  for  Delos  you  hire,  not  a  shoe- 
maker or  some  other  amiable  citizen,  but  a  pilot ;  to  which  the 
democrat  is  constrained  to  answer,  '  Most  true,  O  Plato ;  but  for- 
give me  if  I  suggest  that  it  is  I  that  am  going  to  Delos,  and  that 
the  necessity  is  thereby  placed  upon  me  to  judge  of  the  pilot's 
capacity  to  take  me  there ;  that  I  am  therefore,  by  this  necessity, 
constrained  to  seek  such  evidence  as  may  be  convincing  to  my  own 
humble  and  limited  intelligence,  both,  upon  the  one  hand,  as  to 
whether  the  pilot  is  a  pilot  in  truth,  and  also,  upon  the  other,  as 
to  whether  he  intends  to  take  me  to  Delos  and  to  no  other  place. 
You  will,  perhaps,  remember  my  cousin  who  took  ship,  indeed, 
for  Delos,  but  was  landed  in  Crete,  and  my  aunt  who,  having  made 
a  similar  arrangement,  was  never  landed  at  all.  Forgive  me,  there- 
fore, if,  with  your  kind  permission,  I  make  a  few  trifling  inquiries, 
such  as  in  this  matter  seem  to  me  to  be  necessary,  before  I  go 
aboard.'  " 

Those  who  wish  to  adopt  Wisconsin  methods  in  other 
states  should  subject  all  "experts"  to  a  "few  trifling 
inquiries." 

\     The  development  of  a  high  type  of  trained  expert  is  a 
still  further  necessity  when  one  considers  that  the  lobby 


1 90  THE   WISCONSIN  IDEA 

and  influences  which  great  corporations  have  used  in 
the  past,  in  connection  with  legislative  bodies,  may  be 
transferred  to  the  accountant.  If  an  accountant  com- 
putes the  rate,  basing  it  on  an  intricate  system  of  valua- 
tion, cost  of  the  service,  etc.,  the  powers  that  are  inter- 
ested will  try  to  reach  the  accountant.  We  should  fortify 
our  service  by  employing  men  who  have  had  the  right 
instruction;  whose  teachers  were  such  men  as  know 
fire  when  they  see  it  and  who  maintain  not  only  the 
highest  ideals  of  public  service  but  who  supply  their 
students  with  that  insight  into  the  methods  by  which 
legislation  is  actually  checked  or  defeated  so  that  they 
too  will  know  fire  when  they  see  it. 

In  the  choosing  of  men  through  civil  service  it  will 
be  well  to  remember  that  a  civil  service  commission  is 
subject  to  all  of  the  frailties  of  a  commission.  The  whole 
plan  may  go  wrong  if  that  source  is  not  watched  and 
subjected  constantly  to  the  light  of  public  criticism. 
The  kind  of  examination  which  must  be  passed  deter- 
mines in  the  end  a  large  part  of  the  efficiency  of  the 
individual.  Fortunately  commissions  have  realized  that 
the  ridiculous  examinations  of  twenty  years  ago  when 
book  knowledge  was  made  the  standard  cannot  longer 
command  the  confidence  of  the  people  and  they  are 
gradually  modifying  examinations  so  as  to  bring  the 
elements  of  personality  and  executive  ability  to  a  greater 
prominence  than  mere  memory. 


ADMINISTRATION  igi 

There  is  still  room  for  improvement,  especially  when 
it  comes  to  expert  service  of  a  very  high  order  —  the 
service  which  needs  men  whom  the  position  must  seek, 
the  men  who  will  never  take  examinations. 

At  the  present  time  the  harmonious  cooperation  be- 
tween the  Wisconsin  civil  service  and  the  state  commis- 
sions in  selecting  men  of  this  type  bids  fair  to  solve  the 
problem  although  in  the  past  there  have  been  some 
contentions  over  such  matters. 

China  is  the  greatest  civil  service  nation  of  the  world 
but  the  spirit  of  the  bureaucratic  autocrat  or  the  Chinese 
scholar  must  not  be  allowed  to  creep  in  here.  There  are 
signs  that  thinkers  in  this  line  —  and  it  is  particularly 
true  in  Wisconsin  —  are  alive  to  this  danger  and  stand 
ready  with  remedies  for  it.  Because  something  went 
wrong  once  in  some  part  of  the  world  is  no  reason  why 
it  should  go  wrong  here  now  —  indeed  quite  the  reverse, 
especially  when  history  is  studied  as  carefully  as  it  is 
to-day. 

Recently  we  have  seen  wonderful  results  from  the  new 
studies  in  business  efficiency.  Dr.  Frederick  A.  Cleve- 
land was  probably  the  first  man  to  apply  this  idea  to 
the  administration  of  governmental  institutions.  The 
work  of  the  New  York  bureau  of  municipal  research 
showed  that  certain  definite  responsibility  could  be 
fastened  upon  public  officials,  the  cost  of  service  stand- 
ardized and  efficiency  records  established. 


192  THE  WISCONSIN  IDEA 

Dr.  Cleveland  tells  of  thousands  of  people  watching 
the  record  of  a  baseball  game  as  it  was  reported  on  the 
wall  of  a  newspaper  office.  These  people  were  standing 
in  the  street  watching  what?  Simply  an  efficiency  record. 

Every  move  of  the  men  on  the  baseball  field  was 
noted,  every  error  and  every  score  recorded.  A  record 
of  the  year's  games  was  kept  by  means  of  which  the 
best  men  stood  forth,  men  recognized  as  the  most  effi- 
cient in  baseball.  "  The  lesson  for  public  service  is 
obvious. 

We  cannot  attempt  to  regulate  railroads  or  great  pub- 
lic utilities  unless  our  public  service  is  in  itself  so  organ- 
ized that  it  has  a  thorough  understanding  of  the  intri- 
cate systems  of  cost  accounting  and  efficiency  used  by 
these  great  economic  units.  We  must  have  efficiency  of 
service  in  order  to  assure  efficiency  in  administration. 
As  Professor  Ely  says,  "  Apart  from  the  question  of  the 
simple  difference  in  economic  strength  as  between  the 
contesting  parties,  we  have  the  question  of  skill  on  the 
two  sides."  Now  if  rules  and  regulations  are  to  take 
the  place  of  miscellaneous  law,  they  must  be  made  by 
trained  workers;  they  cannot  be  made  by  ordinary 
elective  officials  of  the  old  type;  they  must  be  made 
upon  tests,  measurements  and  close  observation.  This 
is  as  much  of  a  science,  as  great  a  work  and  demands  as 
high  an  education,  as  any  work  now  known  in  human 
endeavor.  It  is  surely  a  great  undertaking  for  the  uni- 


ADMINISTRATION  193 

versity  to  teach  administration  of  this  kind,  teach  not 
only  the  accounting  principles  of  it,  but  the  formulation 
of  the  legal  basis  of  it,  the  relations  of  the  jurisprudence 
and  the  statute  law,  and  the  entire  methodical  and 
scientific  standardization  of  efficiency  methods.  What 
will  work  in  business  will  work  in  the  state,  if  applied 
with  true  knowledgeTrf  political  acieBcer- 

Expert  help  in  administration  should  be  freely  recog- 
nized and  men  trained  for  it  in  our  colleges  should  be 
used  in  our  government.  The  state  of  Wisconsin  has 
frankly  recognized  the  expert  in  all  these  matters  and  is 
trying  to  persuade  bright  young  men  from  the  graduate 
schools  of  the  university  to  do  voluntary  work  in  the 
study  of  these  different  departments,  so  that  they  may 
be  prepared  to  fill  their  places  in  this  new  service  for 
government.  This  does  not  mean  a  change  in  the 
making  of  the  law  nor  the  domination  of  legislation  —  it 
merely  means  that  there  is  a  capable  servant  at  hand 
to  carry  out  the  decree  of  the  people  in  an  efficient 
manner. 

Granted  that  the  legislature  is  fearless  and  honest  and 
fully  able  to  control  the  most  powerful  commission,  the 
question  of  regulation  resolves  itself  into  a  half-dozen 
concrete,  vital  elements,  —  the  accountant,  the  statis- 
tician, the  actuary,  the  chemist,  red  blood  and  a  big 
stick. 


CHAPTER  VIII 

THE  LEGISLATURE 

IN  considering  the  work  and  procedure  of  the  legisla- 
ture, it  may  be  of  interest  to  describe  the  peculiar  con- 

^ "^•^•—wfc*««***^i^^^*»»««W^B«***-*>^*i 

ditions  in  Wisconsin.  If  the  legislative  product  was  to 
be  effective,  the  actual  business  methods  of  the  legisla- 
ture had  to  be  reorganized ;  this  fact  seems  to  have  been 
recognized  by  the  leaders.  The  reform  of  the  legisla- 
ture in  this  direction  has  been  remarkable ;  the  credit 
belongs  not  to  any  one  faction,  for  this  reform  was  due 
primarily  to  the  decided  legislative  opinion  that  condi- 
tions should  be  improved.  Eleven  years  ago  there  were 
about  seventy  women  employed  to  engross  the  bills  of 
the  legislature  in  long  hand ;  there  was  scarcely  a  type- 
writer used.  Scraps  of  paper  were  often  passed  up  as 
bills  to  the  speaker's  desk.  The  place  was  full  of  useless 
employees,  many  of  whom  never  did  a  stroke  of  work. 
It  was  absolutely  impossible  to  tell  how  many  bills 
amending  a  certain  section  were  before  the  legislature. 
There  were  no  checks  as  to  accuracy.  The  halls  were 
crowded  with  lobbyists.  It  was  easy  for  a  country  mem- 
ber to  find  an  attorney  to  draft  a  bill  for  him  for  a  small 
fee,  especially  if  the  bill  was  aimed  at  some  corporation 

194 


THE   LEGISLATURE  195 

which  could  later  be  approached  by  the  attorney. 
There  was  no  organized  method  of  placing  information 
on  any  particular  bill  before  the  legislator,  nor  was  there 
any  impartial  or  skilled  assistance  in  the  drafting  of  bills 
for  the  honest  legislator  who  knew  nothing  of  law.  If 
hearings  were  held,  no  one  save  the  lobbyists  knew 
when  they  were  scheduled.  The  great  corporations  were 
obliged  to  have  lobbyists  on  the  ground  to  keep  them 
informed  as  to  the  prospective  legislation.  If  these 
lobbyists  found  nothing  which  would  harass  their  em- 
ployers, they  frequently  took  the  trouble  to  see  that 
something  was  introduced  which  would  so  embarrass  the 
corporations  in  order  that  they  might  continue  to  hold 
their  jobs  and  obtain  more  money  to  spend.  The  "hold 
up  man"  was  prominent ;  one  man  every  session  brought 
a  trunk  full  of  " strike"  bills  to  be  distributed  among  his 
loyal  supporters.  The  hotels  and  saloons  flourished 
and  there  was  much  money  in  evidence. 

A  lobby  law  was  passed  which  tended  to  lessen  the 
confusion  on  the  floor.  In  1903  male  stenographers 
and  printing  were  substituted  for  the  women  copyists, 
which  change  resulted  in  great  economy.  During  the 
1911  session,  the  improvement  under  the  strict  rules  as 
laid  down  by  the  speaker  in  the  assembly  was  very 
great  and  insured  orderly  and  businesslike  proceedings. 
Engrossed  bills  were  printed  and  placed  upon  the  desk 
of  each  member;  if  a  legislator  found  errors  in  his  bill, 


196  THE   WISCONSIN   IDEA 

he  could  immediately  stop  its  passage  to  the  governor 
and  have  them  corrected.  This  reform  removed  one 
temptation  to  corruption.  The  governor  at  the  same 
time  secured  an  able  attorney  to  examine  bills  before 
he  signed  them,  so  that  if  errors  were  found,  they  could 
be  corrected  before  his  signature  was  affixed.  What  he 
actually  signed  was  one  of  the  printed  copies  of  the  en- 
grossed bills  which  were  laid  upon  the  desk  of  every 
member.  Here  were  checks  against  mistakes  in  the 
passage  and  the  final  product,  together  with  such  watch- 
fulness as  would  prevent  dishonest  clerks  from  insert- 
ing or  removing  something  at  the  behest  of  interested 
parties. 

With  the  coming  of  civil  service,  the  clerical  force  was 
at  once  made  more  expert  and  fast,  accurate  workers 
were  substituted  for  those  who  had  obtained  their 
positions  by  political  pull.  The  amendments  to  bills 
were  also  printed  and  attached  to  the  bills  in  the  files, 
so  that  each  member  had  a  complete  copy  of  the  bill 
under  consideration  when  he  cast  his  vote.  Paper,  uni- 
form in  size,  was  provided  and  bills  were  required  to  be 
in  duplicate  upon  introduction,  so  that  while  one  copy 
was  sent  to  the  printer,  the  other  was  available  to  the 
house.  This  made  it  exceedingly  difficult  to  steal, 
change  or  mutilate  a  bill  by  means  of  the  old  tricks  of 
the  past. 

A  bill  drafting  department  was  established  in  the 


THE   LEGISLATURE  1 97 

legislative  reference  department  and  the  following  rules 
laid  down  so  that  the  draftsmen  could  not  insert  jokers 
into  the  bills. 

"  Rules  for  the  Drafting  Room 

"i.  No  bills  will  be  drafted  in  the  Reference  Room. 
A  separate  Drafting  Room  and  a  separate  force  have 
been  provided. 

"2.  No  bill  will  be  drafted,  nor  amendments  pre- 
pared, without  specific  detailed  written  instructions  from 
a  member  of  the  Legislature.  Such  instructions  must 
bear  the  member's  signature. 

"3.  The  draftsman  can  make  no  suggestions  as  to 
the  contents  of  the  bills.  Our  work  is  merely  clerical 
and  technical.  We  cannot  furnish  ideas. 

"4.  We  are  not  responsible  for  the  legality  or  consti- 
tutionality of  any  measures.  We  are  here  to  do  merely 
as  directed. 

"5.  As  this  department  cannot  introduce  bills  or 
modify  them  after  introduction,  it  is  not  responsible  for 
the  rules  of  the  legislature  or  the  numbering  of  sections 
either  at  the  tune  of  introduction  or  on  the  final  passage. 

"  Legislative  Reference  Department." 

The  committees  were  gradually  altered  and  adapted 
to  meet  the  changed  economic  conditions  and  the  type 
of  legislation  which  was  being  passed.  The  following  are 
the  committees  in  the  assembly  of  the  1911  session:  — 


THE   WISCONSIN  IDEA 


Standing  Committees  of  the  Assembly 


Judiciary 

Courts  and  procedure 

National  and  interstate  re- 
lations 

Constitutional  amendment 

State  and  economic  better- 
ment 

Elections 

Taxation 

Excise  and  fees 

Highways 

Agriculture 

Agricultural  exhibitions 

Military  affairs 
Cities 

Towns  and  villages 
Counties 
Capitol 
Printing 

Charitable  and  penal  insti- 
tutions 
Banks 
Insurance 


Transportation 
Express,  telegraph  and  tele- 
phone 
Workmen's  compensation 

Labor  and  labor  conditions 

Welfare  of  women  and  chil- 
dren 

Public  health  and  sanitation 

Purity  of  commodities 

Fish  and  game 

Conservation 

Commerce  and  manufac- 
tures 

Parks,  playgrounds  and  city 
planning 

City  living  conditions 

Country  living  conditions 

Education 

Vocational  education 

Libraries 

Legislative  procedure 

Engrossed  bills 

Third  reading 
Enrolled  bills 


THE   LEGISLATURE  1 99 

A  revision  committee  was  created,  with  a  civil  service 
clerical  force,  to  search  all  bills  for  technical  errors. 
Records  of  sections  amended  are  carefully  kept  so  that 
confusion  and  duplication  may  be  avoided.  Bills  are 
checked  at  every  stage  of  passage  by  the  clerks  of  this 
committee. 

In  order  that  all  parties  interested  in  legislation  may 
he  heard,  the  hearings  of  committees  are  by  rule, 
scheduled  in  advance  and  a  weekly  cumulative  bulletin 
is  issued  showing  the  exact  status  of  each  bill  and  its 
history  up  to  the  time  of  publication.  This  system  of 
notification  is  not  yet  perfect  but  at  least  the  business 
man  or  citizen  interested  in  certain  legislation  receives 
some  warning  of  hearings  upon  it.  There  is  no  secrecy 
in  connection  with  these  committees;  they  are  com- 
pelled to  report  out  each  bill,  with  a  recommendation 
together  with  a  record  of  the  ayes  and  noes  of  each 
committee  hearing.  Committees  are  all-powerful  in  an 
American  legislature.  The  roll-call  on  a  bill  before  the 
house  does  not  always  tell  the  story  of  its  opposition  or 
amendment  in  committee.  The  Wisconsin  rule  given 
below  is  not  faultless  but  serves  as  a  check  upon  the 
power  of  the  committees. 


200  THE   WISCONSIN   IDEA 

"JOINT  RESOLUTION  No.  46,  Laws  of  1911,  Relating  to 

hearings  before  and  records   of   committees   of  the 

legislature. 

"  Resolved  by  the  Assembly,  the  Senate  concurring,  That 
there  be  added  to  the  rules,  a  new  rule  to  read :  2 pa. 
i.  The  chairman  or  acting  chairman  of  each  committee 
of  the  legislature  shall  keep,  or  cause  to  be  kept,  a  record, 
in  which  there  shall  be  entered : 

"  (a)  The  time  and  place  of  each  hearing,  and  of  each 
meeting  of  the  committee. 

"  (&)  The  attendance  of  committee  members  at  each 
meeting. 

"  (c)  The  name  of  each  person  appearing  before  the 
committee,  with  the  name  of  the  person,  persons,  firm 
or  corporation  in  whose  behalf  such  appearance  is  made. 

"  (d)  The  vote  of  each  member  on  all  motions,  bills, 
resolutions  and  amendments  acted  upon. 

"2.  Such  record  shall  be  ready  and  approved  before  the 
expiration  of  ten  days  after  each  committee  meeting,  or 
at  the  next  regular  meeting  of  the  committee. 

"3.  Every  committee  hearing  shall  be  open  to  the 
public. 

"4.  There  shall  be  filed,  in  the  proper  envelope,  with 
every  bill  or  resolution  reported  upon,  a  sheet  contain- 
ing the  foregoing  information  as  to  such  bill  or  resolu- 
tion, with  a  duplicate  thereof  to  be  filed  by  the  chief 
clerk  numerically  by  the  number  of  the  bill  in  such  form 


THE   LEGISLATURE  2OI 

as  to  be  most  accessible  for  the  use  of  the  members  and 
the  public,  during  the  session  and  at  the  end  thereof  in 
the  office  of  the  secretary  of  state." 

Wisconsin  has  now  added  to  its  other  machinery  a 
permanent  statute  revisor.  It  is  his  duty  at  the  close 
of  each  session  to  issue  an  annual  volume  bringing  the 
statutes  to  date  and  systematically  to  revise  them, 
chapter  by  chapter,  submitting  each  chapter  as  revised, 
to  the  legislature  for  approval.  The  revisor  of  statutes 
and  his  assistants  are  now  called  in  by  the  governor  to 
examine  all  bills  for  technical  mistakes  before  he  signs 
them.  This  adds  a  further  check  on  mistakes  and  will 
doubtless  prove  a  step  toward  making  our  statute  law  a 
much  finer  and  more  dignified  code. 

Wisconsin  has  had  a  great  advantage  in  its  appropria- 
tion procedure,  for  all  appropriation  bills  must  receive 
the  sanction  of  the  joint  committee  on  finance.  This 
committee  has  practical  control  of  the  amounts  appor- 
tioned and  it  has  become  so  thoroughly  a  custom  to 
"uphold"  the  committee,  that  its  cuts  are  almost  always 
maintained.  This  has  led  to  great  economy  and  par- 
ticularly efficient  adjustment  of  various  appropriations. 
Of  course,  this  committee  withholds  the  bills  until  it 
sees  their  full  content  and  until  some  estimate  of  revenue 
can  be  made.  The  committee  in  recent  years  has  em- 
ployed clerks  and  statisticians.  Contrary  to  the  custom 
in  nearly  all  other  states,  this  committee  reports  these 


O:HE  WISCONSIN  IDEA 

bills  one  by  one,  to  the  legislature,  thus  holding  control 
of  the  situation  until  the  estimate  of  their  amount  and 
the  revenue  which  may  be  expected  is  secured.  No 
other  attempt  at  a  budget  is  made. 

The  state  board  of  public  affairs  created  by  chapter 
586,  laws  of  1911,  is  now  outlining  a  plan  whereby  esti- 
mates may  be  made  before  the  beginning  of  the  session, 
by  which  greater  accuracy  and  certainty  can  be  secured 
during  the  legislature. 

In  the  opinion  of  the  writer,  Wisconsin  has  been  for- 
tunate on  the  whole,  in  not  having  what  is  known  as  a 
" budget  bill."  Trained  as  a  student  of  economics,  it 
was  rather  difficult  for  him  to  reach  this  conclusion  but 
a  thorough  investigation  of  the  procedure  in  other  states 
and  some  first  hand  knowledge  of  such  procedure  in 
foreign  countries  have  convinced  him  of  the  wisdom  of 
this  plan.  The  budget  bill  is  considered  unwise  because 
it  includes  so  much  that  is  a  fruitful  source  for  log- 
rolling and  in  nearly  all  states  has  to  be  supplemented 
by  other  and  more  dangerous  machinery,  such  as  the 
power  of  the  governor  to  veto  items  in  order  to  do  away 
with  riders,  the  deficiency  bill  to  make  up  for  inevitable 
mistakes  and  discrepancies  and  other  similar  devices. 
So  much  is  involved  in  a  budget  bill  that  the  members 
cannot  consider  the  items  separately  as  they  should  and 
are  inclined  to  either  cut  it  arbitrarily  or  accept  it  as  a 
whole.  In  Wisconsin  each  bill  must  be  considered  on  its 


THE   LEGISLATURE  203 

merits,  fought  over  and  either  killed  or  passed.  Noth- 
ing could  be  more  desirable  if  at  each  stage,  the  mem- 
bers have  before  them  a  statement  of  the  actual  finances 
of  the  state.  The  budget  bill  —  meaning  one  inclusive 
bill  containing  all  appropriations  —  belongs  in  a  respon- 
sible cabinet  government  and  not  in  a  government  such 
as  ours.  A  cabinet  government  may  present  its  esti- 
mates and  recommended  expenditures  and  permit  the 
legislative  body  to  fight  over  them  within  limits  but 
the  administration  as  a  result  of  its  acceptance  or  rejec- 
tion, stands  or  falls,  consequently  the  party  member  is 
whipped  into  line  and  supports  those  who  make  the 
estimate,  unless  the  protest  from  public  opinion  is  so 
great  that  he  dare  not  do  so.  If  he  does  not  stand  by 
those  estimates  his  party  goes  out  of  power  and  a  new 
administration  comes  in  to  make  a  more  acceptable  and 
popular  budget.  That  American  states  have  adopted 
the  budget  bill  stands  as  a  monument  to  the  stupidity 
of  political  economists  who  have  recommended  it  to 
American  legislatures  in  the  past. 

Wisconsin  fortunately  never  has  adopted  another  plan 
which  has  usually  accompanied  the  budget  idea  as 
furthered  by  political  economists  and  accountants  and 
which  has  no  precedent  on  the  face  of  the  earth  —  that 
is,  the  idea  that  appropriations  should  be  made  for  all 
state  departments  merely  for  a  two  year  period.  The 
inefficiency,  corruption  and  log-rolling  which  have  come 


204  THE    WISCONSIN    IDEA 

in  many  states  from  this  entirely  false  idea  have  been 
excluded  from  this  state  in  spite  of  constant  pressure  to 
introduce  it.  Such  a  plan  means  minority  control  of  all 
institutions  and  departments;  it  means  that  every  in- 
stitution or  department  dies  every  two  years,  for  unless 
the  appropriation  is  forthcoming  the  institution  or 
department  must  go  out  of  existence;  it  means  that 
twenty  members  of  a  senate  —  if  twenty  is  a  quorum  — 
may  say  to  the  entire  legislature,  "It  takes  an  affirmative 
action  to  pass  this  money  and  we  can  block  it.  If  the 
institution  or  department  wants  this  money  it  will  have 
to  accept  our  terms."  That  is,  the  minority  dictates 
the  terms.  This  little  joker  has  not  been  realized  by 
our  wise  economists  and  accountants  who  have  been 
called  upon  to  help  legislatures  to  better  their  financial 
procedure  but  it  has  destroyed  the  spirit  of  institutions, 
it  has  debauched  commissions  and  departments  and  re- 
sulted in  stagnation  in  many  states.  In  some  states 
where  things  are  peacefully  sleeping,  we  hear  nothing 
of  its  influence;  but  let  an  institution  or  commission 
become  really  active  and  note  what  will  happen.  The 
writer  has  evidence  in  his  possession  from  many  states 
of  its  power.  He  does  not  wish  to  be  understood  as 
opposing  the  budget  system.  On  the  contrary,  he  firmly 
believes  that  all  appropriations  together  with  careful 
revenue  estimates  should  be  laid  before  the  legislature 
every  two  years  so  that  an  account  of  the  stewardship 


THE   LEGISLATURE  205 

of  commissions  and  institutions  may  be  made  to  a  cent, 
but  there  should  be  a  number  —  an  ever-increasing  num- 
ber—  of  institutions  on  a  permanent  basis  so  that  the 
legislature  by  a  majority  vote  may  at  any  time,  raise  or 
lower  the  appropriation  as  it  sees  fit  —  but  not  by  a  mi- 
nority vote.  The  matter  is  important  and  worthy  of  seri- 
ous consideration  because  no  state  will  get  sound  results 
unless  it  provides  some  permanency  for  judicial  bodies, 
semi-judicial  commissions,  such  as  civil  service,  railroad 
commissions,  etc.,  and  above  all,  educational  institutions. 

In  England  especially  and  in  foreign  countries  in 
general,  although  the  budget  may  be  considered  at 
stated  intervals,  many  of  the  most  important  items  are 
placed  on  a  permanent  basis.  Even  under  cabinet  gov- 
ernment in  foreign  countries  which  may  be  changed  by 
public  sentiment,  there  exists  no  such  budget  idea  as  in 
the  American  states.  Indeed,  those  countries  provide 
means  whereby,  if  the  budget  does  not  pass  at  all,  the 
departments  and  institutions  still  continue.  How  can 
the  experts  in  our  commissions  and  the  thinkers  in  our 
institutions  ever  be  aggressive  and  wide  awake  if  they 
always  have  to  be  on  the  defence  against  a  minority? 
There  is  no  more  unwise  arrangement  conceivable  than 
this  plan  of  having  our  appropriations  completely  end 
every  two  years. 

Another  advantage  which  has  fortunately  helped  this 
state  is  the  simplicity  of  its  old  constitution.  For  in- 


206  THE   WISCONSIN  IDEA 

stance,  in  many  states  it  is  almost  impossible  to  pass 
legislation  which  will  withstand  the  scrutiny  of  the 
courts,  because  of  the  technical  legislative  limitations. 
Many  of  these  are  exceedingly  trivial,  such  as  denning 
what  should  be  in  the  title  of  a  bill.  Wisconsin  is  for- 
tunate to  escape  some  of  these  unimportant  limitations, 
although  one  very  perplexing  difficulty  is  constantly 
arising.  In  this  state  there  is  but  one  city  of  the  first 
class  —  Milwaukee.  The  constitution  forbids  special 
legislation  so  that  all  its  legislation  must  be  made  general 
for  cities  of  the  first  class.  It  is  practically  impossible 
to  draft  a  law  for  that  city  which  will  certainly  stand 
the  test  of  constitutionality  under  the  complex  limita- 
tions and  the  numerous  court  decisions  involved. 

Many  constitutions  provide  limitations  as  to  the 
length  of  the  legislative  session;  Wisconsin  has  no  such 
limitation.  In  spite  of  cheap  clamor  concerning  the  time 
spent  by  the  legislature  in  session,  this  has  been  a  great 
blessing  to  the  state.  With  hundreds  of  laws  to  be  pro- 
vided any  one  of  which  may  be  tested  before  the  courts 
for  years,  it  would  indeed  be  foolish  to  fail  to  give  reason- 
able time  or  intelligent  care  to  these  bills.  It  is  a  good 
investment  in  the  end.  The  writer  believes  it  would  be 
a  good  thing  for  the  legislature  to  meet  immediately 
after  election,  organize  committees  and  adjourn  for  a 
year ;  it  would  certainly  assure  more  care  in  the  prepara- 
tion of  measures. 


THE   LEGISLATURE  207 

The  Wisconsin  legislature  meets  biennially.  The 
amount  of  work  involved  has  been  so  great  that  the 
writer  believes  it  will  not  be  long  until  some  kind  of 
annual  session  will  be  necessary  if  hasty  legislation  is  to 
be  avoided.  In  those  states  which  have  sessions  limited 
to  sixty  or  ninety  days  by  their  constitutions,  there  is 
an  excellent  opportunity  for  " jockeying"  and  great  in- 
ducements for  delay,  as  all  bills  not  previously  disposed 
of  must  either  be  passed  or  killed  in  the  last  few  hours. 
Nothing  more  disastrous  to  good  legislation  can  well  be 
imagined  and  the  session  laws  of  those  states  bear  out 
this  statement. 

The  study  of  legislative  machinery  has  been  of  special 
interest  to  the  author  because  of  his  duties  as  chief  of 
the  Wisconsin  legislative  reference  department.  Be- 
cause of  many  questions  from  various  parts  of  the 
country,  the  following  description  of  the  department 
and  its  purposes  is  included.  Much  of  the  following 
has  been  digested  from  previous  statements  but  there 
are  occasional  digressions  to  show  the  actual  con- 
ditions of  legislation  and  the  need  of  a  department  of 
this  kind. 

We  are  all  aware  of  the  stupendous  changes  in  our 
economic  and  industrial  conditions  which  this  country 
has  undergone  since  the  constitution  was  adopted.  To 
meet  these  conditions  our  whole  theory  of  government 
has  been  strained. 


CONSTITUTIONAL  LIMITATIONS 


LEGISLATIVE  POWER 


208  THE   WISCONSIN   IDEA 

Diagram  V  may  illustrate  the  problem  of  modern 
legislation.  Let  us  assume  that  this  illustrates  approxi- 
mately the  conditions  when  the  constitution  was  first 
adopted.  It  will  be  presumed  that  the  constitutional 
convention  made  legislative  power  and  the  constitution 
conform  approximately  to  the  actual  industrial  and 

social  needs  of  soci- 
ety. This  is  a  rea- 
sonable supposition. 
If  true,  what  has 
since  occurred  ? 

Diagram  VI  illus- 
trates   the    present 
relative  position  of 
the  constitution,  the 
—     legislative  power  and 
DIAGRAM  v  economic  conditions. 

The  constitutional  power  has  been  increased  by  the 
action  of  the  courts  and  especially  by  the  new  force 
which  has  grown  up,  probably  not  contemplated  by  the 
original  constitution,  namely,  the  power  of  the  courts 
to  pass  upon  the  constitutionality  of  laws.  The  consti- 
tution in  fact,  has  grown  from  a  small  pamphlet  into 
thousands  of  cases  and  hundreds  of  volumes  of  decisions. 
These  decisions  cannot  but  lessen  the  power  of  legisla- 
tures. It  is  true  that  the  "  constitution  cannot  be  read 
in  a  law  library"  and  the  increase  of  the  domain  of  the 


ECONOMIC  CONDITIONS 


THE    LEGISLATURE  209 

police  power  and  of  administrative  law  has  somewhat 
broadened  the  power  of  the  legislature  in  certain  direc- 
tions but  on  the  other  hand  the  very  mass  of  interpre- 
tation is  itself  a  restriction. 

Every  word,  almost,  has  received  an  interpretation  or 
has  had  its  meaning  confused  by  endless  decisions. 
Judge  Hornblower  in  an  address  in  which  he  decried  the 


PRESENT  CONSTITUTIONAL  LIMITATIONS 


PRESENT  LEGISLATIVE  POWER 


PRESENT  ECONOMIC  CONDITIONS 


DIAGRAM  VI 

increase  of  statute  law  and  defended  judge-made  law, 
gives  us  one  of  the  strongest  pictures  of  the  difficulties 
of  law  making.  He  says:  — 

"  Experience  shows  that  when  rules  of  law  are  reduced  to  statu- 
tory form  the  work  of  interpretation  and  construction  commences. 
Each  word  in  the  statute  assumes  importance  and  calls  for  en- 
forcement. A  '  but '  or  an  '  and '  becomes  as  important  as  the 
subject  or  the  predicate  of  the  sentence,  and  sometimes  even  more 
important.  ...  In  a  statute  conciseness,  exactness,  and  pre- 
p 


210  THE   WISCONSIN   IDEA 

cision  are  sought  after,  and  each  article  or  preposition  is  as  much 
the  will  of  the  legislature  and  as  binding  upon  the  courts  as  are  the 
nouns  and  verbs. 

"  Human  language  is  at  best  defective  and  ambiguous.  The- 
ologians dispute  over  the  meaning  of  texts  of  Scripture,  and  when 
they  have  formulated  creeds  and  confessions  as  setting  forth  the 
doctrines  of  the  Scriptures,  the  dispute  begins  again  over  the  mean- 
ing of  the  creeds  and  the  confessions.  So  with  statutory  law.  No 
matter  how  clear  and  simple  the  language  may  appear  at  first 
sight,  doubts  will  arise,  ambiguities  will  be  disclosed,  inconsis- 
tencies between  different  sections  will  present  themselves,  and  a 
series  of  never-ending  decisions  will  be  inaugurated,  construing 
and  interpreting  the  statute,  till  each  section  becomes  overlaid 
with  a  body  of  judge-made  commentaries  forming  a  new  set  of 
precedents  and  a  new  jurisprudence.  No  greater  fallacy  is  in- 
dulged in  by  the  advocates  of  codification  than  that  it  will  dimin- 
ish litigation.  Statutes  breed  litigation.  Experience  demon- 
strates this.  Whatever  other  merits  codifications  may  have,  the 
diminution  of  litigation  is  certainly  not  one  of  them.  Look  at  our 
New  York  Code  of  Civil  Procedure  (our  code  of  practice)  with  the 
three  bulky  volumes  of  Bliss's  Annotations  of  Decisions  construing 
it,  each  volume  nearly  as  large  as  a  Webster's  Dictionary.  Look 
at  the  little  Statute  of  Frauds,  composed  of  a  few  sections  with 
its  wilderness  of  authorities  interpreting  it.  Look  at  the 
portion  of  our  New  York  Revised  Statutes  on  Trusts  and 
Powers,  and  count  the  cases  in  each  volume  of  our  Court  of 
Appeals  Report  construing  these  few  sections.  The  idea  that 
codification  is  a  remedy  for  uncertainty  in  the  law  and  that 
when  the  law  has  been  written  in  statutory  form,  the  layman 
will  be  able  to  read  and  understand  it,  is  a  delusion  and  a 


THE   LEGISLATURE  211 

Professor  Howard  L.  Smith  is  the  authority  for  the 
following  statement:  — 

"  There  are  in  America  alone  over  six  thousand  volumes  of  de- 
cisions of  fifty  or  sixty  different  tribunals,  and  these  are  being  added 
to  at  the  rate  of  from  one  to  two  hundred  volumes  per  annum. 
The  common  law  is  being  further  developed,  illustrated,  and  made 
by  the  courts  of  Great  Britain  and  all  her  widespread  colonies. 
The  number  of  volumes  of  precedents  that  these  add  every  year 
to  the  common  law,  I  have  not  attempted  to  compute,  but  it  is 
certainly  appalling.  The  shelves  of  our  libraries  groan  under 
them,  and  the  lawyers  are  being  driven  out  of  their  offices  by 
their  books. 

"  An  advertisement  of  a  recent  encyclopedia  of  law  boasts  that 
it  has  8559  citations  on  the  subject  of  adverse  possession,  while  its 
leading  competitor  has  only  a  paltry  4999.  On  the  subject  of 
abatement  and  revival  it  has  5015  and  on  appeal  and  error  47,000. 
Amid  this  bog  of  precedents  the  lawyer  of  to-day  must  stumble, 
groping  earnestly,  but  often  vainly,  for  a  clue  which  shall  lead  him 
to  the  truth.  It  is  probable  that  the  number  of  citations  on  the 
one  subject  of  appeal  and  error  in  this  encyclopaedia  is  greater  than 
the  real  number  of  precedents  on  all  legal  subjects  in  existence  a 
century  ago ;  but  the  mad  race  of  precedents  is  only  begun,  and 
will  of  course  increase  in  the  future  in  an  ascending  ratio,  until  in 
the  near  future  they  will  be  counted  by  the  tens  and  the  hundreds 
of  thousands  or  millions. 

"  That  the  lawyer  desiring  to  advise  his  client  as  to  some  simple, 
readily  foreseeable  question  of  law  should  be  obliged  to  consult 
hundreds  of  volumes,  and  thousands  of  precedents,  perhaps  only 
at  the  end  to  find  that  there  is  a  hopeless  division  of  authority, 
and  that  he  knew  just  as  much  about  it  in  the  beginning  as  at  the 


212  THE   WISCONSIN   IDEA 

end,  is  certainly  a  situation  so  serious  as  to  demand  some  remedy, 
if  any  be  possible." 

If  the  lawyer  has  to  meet  these  conditions  what  can 
the  layman  do  ?  If  these  conditions  are  encountered  in 
the  interpretation  of  law,  the  making  of  the  law  is  indeed 
a  terrible  task.  We  have  an  endless  circle.  We  cannot 
make  statute  law  without  consulting  this  labyrinth; 
nevertheless  we  must  make  it.  We  must  make  it  even 
though  we  only  follow  public  sentiment. 

Our  government  was  founded  on  the  principle  that 
the  adaptation  of  law  to  economic  conditions  should  be 
made  by  the  will  of  the  people  expressed  in  legislation. 
We  cannot  give  this  task  to  the  judges;  we  did  not 
make  our  government  on  that  basis.  Divided  courts 
and  reversals  have  left  the  lawyer  helpless  as  well  as  the 
layman  of  the  legislature.  The  courts  have  often  in- 
dulged in  reckless  use  of  the  power  to  declare  laws  un- 
constitutional on  the  slightest  technicalities.  The  four- 
teenth amendment  to  the  federal  constitution  has  been 
very  efficacious  in  restricting  state  legislation,  as  has 
also  the  broad  interpretation  of  federal  statutes  by  the 
federal  courts.  On  the  other  hand  the  simple  industrial 
conditions  of  fifty  or  a  hundred  years  ago  have  given 
place  to  the  present  era  of  wonderful  inventions.  Nearly 
every  invention  and  device,  economic,  commercial  and 
mechanical  used  in  our  modern  life,  has  to  be  met  by 
legislative  restriction  or  control. 


THE   LEGISLATURE  213 

Under  these  conditions  it  is  remarkable  what  progress 
has  been  made  with  our  statute  law.  In  spite  of  all 
criticism  and  faults  when  one  looks  over  our  statute 
law  he  is  amazed  that  it  is  so  good.  When  he  considers 
that  it  was  made  under  the  conditions  herein  described ; 
when  he  considers  that  state  after  state  came  into  the 
Union,  each  making  an  entirely  new  constitution,  each 
adopting  an  entirely  new  body  of  laws,  he  cannot  but 
feel  proud  of  the  inherent  ability  of  the  American  people. 
The  argument  is  unanswerable.  In  general  legislators 
have  not  been  corrupt  nor  have  they  been  inefficient. 
Our  statute  volumes  are  monuments  to  the  ability  and 
common  sense  of  our  legislators.  No  other  people  under 
the  same  conditions  could  have  done  so  well. 

Representative  government  must  be  judged  in  the 
end  by  its  product  and  the  immediate  tangible  product 
of  representative  government  is  the  statute.  If  we  are 
to  construct  a  building  to-day  and  the  structure  is  to  be 
a  large  one  or  of  any  real  importance,  there  must  be  an 
architect.  If  it  were  built  without  his  services  it  is 
probable  that  the  building  inspector  would  order  it 
demolished  in  order  to  protect  life,  health  and  property. 
We  must  have  experts  to  show  us  practical  plans  and  to 
arrange  for  heating,  lighting  and  sanitation.  If  we  do 
not,  disaster  is  the  result.  In  building  the  statute  which 
regulates  everything  in  life,  is  it  not  the  sensible  thing 
to  employ  an  architect  and  let  him  work  out  the  plans 


214  THE   WISCONSIN   IDEA 

under  our  general  direction  and  ask  him  to  change  them 
again  and  again  until  we  are  satisfied  ?  Is  this  not  the 
right  thing  to  do  in  order  that  the  plans  may  be  passed 
upon  by  the  building  inspector  and  that  the  building 
may  rise  fair,  noble,  fitted  for  our  use  and  so  constructed 
that  it  may  stand  for  all  time  ? 

The  courts  have  acted  for  a  long  time  as  building 
inspectors.  They  have  been  forced  to  destroy  too  many 
structures  which  were  not  properly  built  in  the  first 
place.  There  should  be  a  body  of  experts  to  gather 
information  about  the  laws,  to  obtain  statistics,  to  draft 
and  redraft  through  the  guidance  of  the  representative 
of  the  people,  laws  which  deeply  affect  the  people. 
There  should  be  some  such  system  whereby  the  products 
of  democracy  may  be  good  and  the  courts  may  not  be 
compelled  to  leave  the  sphere  which  the  fathers  intended 
they  should  occupy  and  go  into  the  untried  fields  of 
judicial  legislation. 

This  is  the  central  main  concept  of  the  legislative 
reference  department.  The  legislative  reference  depart- 
ment of  the  Wisconsin  library  commission  was  estab- 
lished in  a  small  way  in  1901.  It  became  apparent  at 
once  that  the  demands  of  this  library  were  of  a  peculiar 
nature  which  could  not  be  readily  met  by  the  ordinary 
library  material  or  methods. 

A  plan  was  devised  which  has  been  since  carried  out 
as  far  as  the  resources  given  by  the  legislature  would 


THE   LEGISLATURE  215 

permit.  It  was  found  that  there  was  no  cooperation 
between  the  different  states  of  this  Union  in  the  matter 
of  collecting  the  history  of  legislation;  the  history  of 
what  had  occurred  in  Europe  or  in  some  state  of  the 
Union  upon  a  certain  subject  of  interest  to  the  people 
of  the  state  was  not  readily  available.  An  effort  to 
supply  this  demand  was  made  by  collecting  such  indexes 
of  up-to-date  legislation  as  were  published,  bills  from 
other  states,  documents  explanatory  of  legislative  move- 
ments in  other  states  and  arranging  these  by  subjects 
so  that  they  would  be  at  the  service  of  all  who  desired 
to  see  them.  It  was  found  that  even  this  material  did 
not  solve  the  problem;  it  was  necessary  to  clip  news- 
papers from  all  over  the  country  and  to  put  the  clippings 
in  book  form,  to  index  them  carefully  and  place  them 
also  with  the  subjects.  Our  own  bills  of  the  previous 
four  sessions  were  carefully  indexed  and  by  noting  the 
subjects  of  those  bills,  we  anticipated  the  problems  with 
which  the  legislature  would  have  to  deal.  These  prob- 
lems or  special  subjects  were  carefully  studied  in  the 
most  minute  detail.  It  was  comparatively  easy  to  get 
laws  and  court  cases  but  it  was  far  more  difficult  to  find 
how  these  laws  were  administered,  to  discover  the  weak- 
nesses in  them  and  to  note  as  far  as  possible  how  they 
could  be  adapted  to  our  use  in  this  state. 

Our  short  experience  has  taught  us  many  things.     We 
have  been  convinced  that  there  is  a  great  opportunity 


2l6  THE   WISCONSIN   IDEA 

to  better  legislation  through  work  of  this  kind  —  that 
the  best  way  is  to  help  directly  the  man  who  makes  the 
laws.  Everything  which  will  help  him  to  grasp  and 
understand  the  great  economic  problems  of  the  day  in 
their  fullest  significance,  the  legislative  remedies  which 
can  be  applied  and  the  legislative  limitations  which  exist 
is  brought  to  his  attention.  The  legislator  is  a  busy 
man ;  he  has  no  time  to  read.  His  work  is  new  to  him ; 
he  is  beset  with  routine ;  he  is  obliged  to  hold  conferences 
with  his  friends  upon  political  matters;  he  is  besieged 
by  office-seekers  and  lobbyists  and  he  has  no  time  for 
study.  If  he  does  not  investigate  for  himself,  he  often 
is  deceived  by  those  who  are  seeking  the  accomplish- 
ment of  their  own  selfish  ends.  Therefore,  we  can  be  of 
the  greatest  service  to  him,  if  we  index,  digest  and  make 
as  clear  as  possible  all  kinds  of  information. 

A  large  library  is  likely  to  fail  in  this  because  it  is  of 
too  general  a  nature  and  too  cumbersome.  Everything 
in  such  a  department  should  be  directly  to  the  point. 
It  should  be  a  depository  for  all  sorts  of  documents  relat- 
ing to  any  phase  of  legislation  from  all  the  states,  the 
federal  government  and  particularly  from  foreign  coun- 
tries like  England,  Australia,  France,  Germany  and 
Canada.  Here  one  would  be  able  to  obtain  a  law  upon 
any  subject  or  a  case  upon  any  law  very  quickly.  There- 
fore, it  is  very  convenient  to  have  this  room  near  a  good 
law  library.  Books  are  generally  behind  the  times,  so 


THE    LEGISLATURE  217 

that  newspaper  clippings  from  all  over  the  country, 
magazine  articles,  court  briefs  and  letters  must  supple- 
ment this  library  and  compose  to  a  very  large  extent  its 
material. 

A  trained  librarian  and  indexer,  a  resourceful  person 
with  a  liberal  education,  who  is  tactful  and  can  meet  an 
emergency  is  absolutely  essential.  The  material  is 
largely  " scrappy"  and  difficult  to  classify  and  should  be 
so  arranged  that  it  is  compact  and  accessible.  In  our 
work  we  are  not  afraid  to  tear  up  books,  documents, 
pamphlets,  clippings,  letters,  manuscripts  or  other  ma- 
terial, put  it  with  the  different  subjects  and  minutely 
index  it.  Legislators  have  no  time  to  read  large  books. 
The  librarian  has  no  time  to  hunt  up  many  references  in 
different  parts  of  the  library;  all  material  upon  every 
subject  of  legislative  importance  should  be  together  as 
far  as  possible.  Complete  indexes  of  all  bills  which 
have  not  become  laws  in  the  past  should  be  made.  This 
saves  the  drawing  of  new  bills  and  makes  the  experience 
of  the  past  cumulative.  Records  of  vetoes,  special 
messages,  political  platforms,  political  literature  and 
other  handy  matter  is  carefully  noted  and  arranged. 

Digests  of  laws  of  the  various  states  on  every  subject 
of  importance  receiving  consideration  by  the  legislature 
should  be  made  and  many  copies  kept  for  distribution. 
Leading  cases  on  all  these  laws,  opinions  of  public  men 
and  experts  upon,  the  working  of  these  laws  or  upon  the 


2l8  THE   WISCONSIN   IDEA 

defects,  technical  or  otherwise,  are  carefully  indexed. 
As  far  as  possible  in  the  Wisconsin  department  the  more 
important  subjects  with  short  bibliographies  are  pub- 
lished in  pamphlet  form. 

Such  a  department  must  be  absolutely  non-political 
and  non-partisan.  If  there  is  a  choice  between  the 
establishment  of  a  political  department  or  no  depart- 
ment at  all,  the  latter  alternative  should  be  taken  with- 
out question. 

The  head  of  such  a  department  should  be  trained  in 
economics,  political  science  and  social  science  in  general ; 
he  should  have  a  good  knowledge  of  constitutional  law 
but  above  all,  should  be  possessed  of  tact  and  a  knowl- 
edge of  human  nature. 

There  should  be  a  trained  draftsman  connected  with 
the  department  —  a  man  who  is  a  good  lawyer  and 
something  more  than  a  lawyer  —  one  who  has  studied 
legislative  forms,  who  can  draw  a  bill,  revise  a  statute 
and  amend  a  bill.  It  is  essential  that  help  such  as  a 
man  of  this  type  can  render,  be  given  to  the  legislator 
when  he  desires  it. 

Will  such  a  department  help  in  the  betterment  of 
legislation  ? 

Let  us  consider  for  a  moment  how  a  law  is  actually 
made.  John  Smith  comes  to  the  legislature.  He  is  a 
good  citizen,  a  man  of  hard  sense  and  well  respected  in 
his  community.  Suddenly,  from  the  quiet  of  his  native 


THE   LEGISLATURE  2 IQ 

village,  he  enters  into  a  new  life  in  a  new  community. 
He  is  worried  by  office-seekers ;  his  old  friends  and  ad- 
visers are  not  near  to  help  him ;  he  finds  that  it  is  neces- 
sary to  learn  the  ropes;  that  if  he  is  to  represent  his 
district,  he  must  introduce  bills  and  in  some  way  must 
push  those  bills  through  the  legislature.  In  the  first 
place  he  must  have  those  bills  drafted  and  since  he 
never  drew  up  a  bill  in  his  life,  knowing  very  little  of 
legal  technique,  he  is  greatly  perplexed.  He  is  con- 
fronted with  two  thousand  bills  on  almost  as  many  legal 
and  economic  subjects.  Complex  questions,  which  have 
not  been  settled  by  the  greatest  thinkers  of  to-day  are 
hurled  at  his  head.  Even  scientific  subjects  that  the 
chemist,  the  physician  or  the  man  of  science  find  diffi- 
cult must  be  met  by  our  John  Smith  while  in  the  hurry 
and  rush  of  committee  work.  If  he  is  honest,  he  will 
either  attempt  to  draft  the  bill  himself  or  pay  some 
lawyer  to  do  it  for  him ;  the  easiest  way  however,  is  to 
consult  some  one  else.  He  finds  around  him  bright 
men,  well  paid  lawyers,  men  of  legal  standing  who  are 
willing  to  help  him  in  every  way.  It  is  easy  to  consult 
these  men ;  and  often  if  he  does,  he  is  lost.  He  seldom 
finds  a  true  friend.  They  are  there  for  their  own  interests 
and  John  Smith  is  legitimate  prey.  It  is  their  business 
to  reach  him.  If  by  persistent  courage  and  sterling 
honesty  he  pushes  his  bills  to  passage,  those  laws  dealing 
with  complex,  technical  subjects  and  drawn  by  a  man 


220  THE   WISCONSIN   IDEA 

unskilled  in  law,  are  often  declared  unconstitutional  by 
the  courts. 

Here  then,  is  the  situation.  We  see  the  farmer,  the 
groceryman,  the  country  lawyer,  the  successful  manu- 
facturer, the  man  of  business,  all  grappling  entirely  un- 
prepared, with  the  problem  of  making  laws  that  repre- 
sent every  phase  of  industrial  life.  A  few  years  ago  the 
simple  legislation  could  be  easily  handled  by  these  men 
but  now  the  great  problems  of  the  railroads,  the  tele- 
graph, the  telephone,  insurance,  and  the  many  complex 
things  of  our  modern  life,  make  it  simply  impossible  for 
one  man  however  bright  or  educated  he  may  be,  to  act 
intelligently  upon  one-tenth  of  the  subjects  which  come 
before  the  legislature.  When  some  new  invention  comes 
into  being,  legislation  must  deal  with  it ;  when  some  new 
situation  arises  through  the  growth  of  new  industries, 
some  new  law  must  be  made  restraining,  encouraging  or 
in  some  way  regulating  these  new  conditions.  It  all 
goes  to  show  how  unfitted  is  our  old  representative 
government  to  meet  the  conditions  to-day  and  how 
utterly  helpless  any  one  man  is  to  meet  these  intricate 
problems. 

Besides  all  these  difficulties,  there  are  others  pre- 
viously mentioned,  one  of  which  is  worthy  of  special 
attention,  namely  the  great  abundance  and  complexity 
of  judge-made  laws.  The  increasing  distrust  of  the  legis- 
latures by  our  citizens  has  resulted  in  state  constitutions 


THE   LEGISLATURE  221 

which  are  nothing  more  than  compiled  statutes,  filled 
with  innumerable  restrictions  upon  the  action  of  the 
legislator.  He  is  restrained  in  every  way  by  the  federal 
constitution,  by  his  own  state  constitution  and  by  the 
hundreds  and  hundreds  of  cases  interpreting  nearly 
every  word  and  phrase  in  every  law.  Is  it  any  wonder 
that  there  is  a  cry  that  the  supreme  court  is  usurping 
legislative  functions  and  is  defeating  the  will  of  the 
people  ?  Does  it  seem  right  that  our  legislative  opinion 
should  be  moulded  by  private  interests  because  they 
aU»ne  know  how  to  present  their  case?  Does  it  seem 
right  that  the  only  help  which  the  legislator  receives  in 
his  great  need  is  that  of  the  people  who  are  seeking 
gain  from  the  very  laws  he  is  making  and  who  are  trying 
to  prevent  the  making  of  effective  laws  ? 

A  committee  is  often  a  judicial  body.  It  sits  in 
judgment  upon  private  bills.  It  gives  rights  and  fran- 
chises that  make  men  wealthy  or  deprive  men  of  their 
property.  Yet  this  court  hears  often  but  one  side  of  an 
argument  and  has  no  means  of  investigating  the  truth 
or  untruth  of  a  single  statement  made.  Not  only  that 
but  it  is  subjected  in  its  determination  to  a  hundred 
influences  to  which  no  judge  is  subjected.  Would  we 
permit  such  a  state  of  affairs  in  our  private  business? 
Would  we  tolerate  it  in  our  judiciary  ?  Why,  the  power- 
ful interests  do  not  have  to  resort  to  bribery !  Their 
experts  can  win  by  the  irresistible  force  of  argument 


222  THE   WISCONSIN  IDEA 

alone.  They  must  hold  the  balance,  for  they  have  the 
brains  of  the  land  and  pay  well  for  them. 

Is  it  any  wonder  that  many  good  people  throw  up 
their  hands  with  joy  and  say  "Thank  God  ..the  legisla- 
ture is  over"?  Is  it  a  thing  to  be  joked  about?  Our 
papers  make  fun  of  the  legislature  and  its  " freak"  legis- 
lation but  it  is  a  most  significant  state  of  affairs  when  a 
people  lose  confidence  in  its  governing  body. 

The  revelations  of  graft  and  corruption  of  the  last 
few  years  should  convince  us  all  that  we  must  seek  a 
positive  remedy  of  a  more  fundamental  kind  than  has 
yet  been  proposed.  If  these  are  the  conditions  under 
which  our  legislative  opinion  is  formed,  is  it  strange  that 
the  will  of  the  people  is  constantly  defeated  ?  Is  it  any 
wonder  that  our  laws  are  poor  ?  Is  it  any  wonder  that 
the  clamor  of  public  opinion  is  not  heard  within  our 
legislative  halls,  and  that  the  making  of  needed  laws 
goes  on  so  slowly?  What  is  the  remedy  for  all  this? 
We  look  about  us  and  on  the  whole  find  our  judiciary 
composed  of  able  men.  Our  administrative  bodies  have 
not  yet  reached  so  high  a  standard  but  we  are  every 
day  developing  administrative  bodies  which  are  becom- 
ing more  and  more  fit  to  take  charge  of  the  business  of 
the  state  but  how  about  the  legislature?  Does  it  not 
seem  reasonable  that  the  law  which  is  the  expression  of 
the  will  of  the  people  and  upon  which  good  administra- 
tion is  founded,  should  be  scientific  —  should  be  based 


THE   LEGISLATURE  223 

upon  the  best  experience  of  mankind?  If  our  adminis- 
tration is  to  be  good  administration,  does  it  not  seem 
ridiculous  that  the  supreme  courts  —  the  highest  legal 
talent  in  our  states  and  our  nation  —  should  go  on  day 
after  day,  year  after  year  turning  out  decision  after 
decision  upon  laws  which  are  often  made  by  men  who 
have  never  seen  a  law  book,  and  who  have  not  had  the 
slightest  legal  help  extended  to  them?  Does  it  seem 
right  that  our  fundamental  law  should  be  left  to  these 
haphazard  conditions  ?  Does  it  seem  reasonable  that  all 
the  talent  should  be  used  in  interpreting  laws,  in  curing 
their  defects  and  that  absolutely  nothing  should  be  done 
in  a  scientific  way  to  assist  the  man  who  makes  them? 
The  construction  of  the  law  is  a  far  harder  task  than 
the  criticism  or  even  the  interpretation  of  it.  It  involves 
the  interpretation  of  it;  it  involves  a  knowledge  of  the 
theory  of  government  and  because  of  the  enlarged 
sphere  of  government  to-day,  a  sound  knowledge  of 
economic  conditions.  Our  legislators  can  furnish  the 
brains  and  the  will ;  all  that  they  need  is  the  technical 
assistance. 

We  have  heard  a  great  deal  of  condemnation  of  the 
legislature.  It  is  easy  and  popular  too,  to  sneer,  censure 
and  criticise  —  but  we  have  heard  very  few  suggestions 
as  to  a  remedy. 

If  private  forces  maintain  bureaus  of  information  for 
representatives,  let  us  have  public  information  bureaus 


224  THE   WISCONSIN   IDEA 

open  to  private  and  public  interests  alike.  If  it  is  diffi- 
cult to  get  information  because  of  the  great  variety  of 
subjects  now  coming  before  our  legislators,  the  only 
sensible  thing  to  do  is  to  have  experts  gather  this  ma- 
terial. If  business  interests  have  excellent  lawyers  to 
look  after  their  legislation,  the  people  should  secure  the 
same  kind  of  men  to  help  their  representatives.  If  the 
business  interests  secure  statisticians,  engineers  and 
scientific  men,  the  public  should  do  likewise.  If  great 
judges  and  lawyers  are  constantly  working  upon  the 
problems  of  interpretation  of  laws,  surely  men  of  equal 
ability  could  well  be  consulted  or  retained  by  the  people's 
representatives  in  the  construction  of  these  laws. 

Now,  what  do  we  expect  from  the  successful  operation 
of  a  system  like  this  ?  We  hope  that  all  legislation  may 
be  made  better  and  be  placed  upon  a  more  scientific 
basis.  We  look  upon  this  as  a  purely  business  opera- 
tion. No  one  would  buy  land  in  Texas  without  having 
seen  the  land.  You  might  buy  land  in  a  lake  or  in  the 
bed  of  a  river  if  you  followed  such  a  plan ;  you  would  at 
least  have  some  one  look  up  your  abstract.  But  we 
permit  our  legislators  to  copy  a  Texas  statute  which 
may  be  twenty  years  old,  may  have  been  modified 
twenty-five  times,  may  be  entirely  unsuited  to  our  con- 
ditions and  which  may  be  in  the  end  unconstitutional  — 
we  let  our  legislators  incorporate  such  statutes  in  our 
statute  books  without  a  protest.  Common  sense  tells  us 


THE   LEGISLATURE  225 

that  we  should  secure  all  possible  knowledge  relating  to 
that  statute  for  the  use  of  our  legislators.  In  this  way 
legislation  cannot  avoid  being  improved ;  in  this  way  the 
dearly  bought  experience  of  one  state  is  used  for  the 
betterment  of  conditions  in  another  state;  the  best 
there  is  may  be  culled  out  from  the  statutes  throughout 
the  country  and  used  for  the  benefit  of  our  people. 

There  is  a  great  outcry  against  our  overloaded  consti- 
tutions. Our  constitutions  have  been  purposely  over- 
loaded because  the  people  who  made  them  wished  to 
incorporate  certain  things  which  could  not  be  over- 
turned by  the  caprice  or  corruption  of  legislators.  As 
time  goes  on,  if  the  people  find  that  the  product  of 
legislation  is  based  upon  a  careful  scientific  study,  they 
will  regain  confidence  in  the  legislature  and  again  trust  it. 

There  is  a  widespread  agitation  at  the  present  time  for 
centralization  and  nationalization,  a  movement  which 
strives  to  have  one  after  another  of  the  state  functions 
absorbed  by  the  national  government.  There  is  much 
discussion  concerning  various  forms  of  federal  supervision 
of  one  thing  or  another.  As  our  state  laws  are  gradually 
improved,  a  great  deal  of  this  agitation  will  cease,  for 
as  yet  we  have  not  reached  the  limit  of  efficient  state 
activity,  nor  made  a  scientific  study  of  expedients.  The 
best  laws  are  those  which  are  of  most  interest  to  the 
men  who  make  the  laws,  and  the  only  means  of  saving 
our  local  option  system  of  state  government,  the  only 
Q 


226  THE   WISCONSIN  IDEA 

means  of  keeping  the  federal  government  at  Washington 
from  controlling  our  affairs,  is  to  make  our  state  laws 
better  and  better.  The  only  way  in  which  they  can  be 
improved  is  to  use  scientific  methods  in  the  making  of 
them.  Every  improved  business  method  together  with 
technical,  clerical  help  should  be  secured  in  order  that 
the  man  who  passes  the  laws  may  have  at  his  command 
the  knowledge  necessary  to  make  laws  good,  just  and 
worthy  to  stand  for  all  time. 

If  our  state  legislature  gains  in  the  confidence  of  the 
people,  in  like  proportion  will  our  supreme  court  and 
judicial  bodies  profit.  Our  courts  will  not  feel  called 
upon  to  make  decisions  which  apparently  defeat  the  will 
of  the  people.  They  will  not  be  obliged  to  overthrow 
law  after  law  which  has  been  put  upon  our  statute  books 
by  prolonged  and  patient  struggle.  Prevention  is  better 
than  cure,  and  every  effort  which  can  be  put  into  pre- 
vention in  this  case  will  make  it  easier  for  our  courts 
to  decide  upon  the  true  merits  of  the  laws.  Decisions 
based  upon  technicalities  will  be  less  in  number  and  our 
judiciary  will  continue  to  be  respected  and  honored. 

Says  the  Montana  bar  association  in  a  recent  report : 
"The  time  of  the  court  is  consumed  in  hearing  discus- 
sions upon  statutory  enactments  and  determining  what 
law  is  in  force  and  what  has  been  repealed.  Litigation 
is  thus  delayed,  additional  expense  engendered  and  the 
private  rights  rendered  insecure."  What  is  the  remedy 


THE    LEGISLATURE  227 

for  such  conditions?  Do  these  conditions  not  demand 
that  the  same  skill  used  in  interpreting  the  law  shall  be 
used  in  its  construction? 

;  Quite  recently  we  have  seen  the  results  of  the  work 
of  the  Armstrong  investigating  committee  in  New  York. 
No  insurance  law  ever  passed  in  this  country  had  so 
much  effect  upon  insurance  regulation  and  that  report 
was  made  by  legislators,  not  by  state  officials.  There 
have  been  objections  to  the  increase  of  commission  gov- 
ernment and  yet  this  form  of  government  has  increased 
because  it  has  been  felt  that  it  furnished  the  only  method 
of  enforcing  laws  and  the  only  way  of  administering 
special  duties.  And  yet  this  Armstrong  committee 
shows  us  a  way  of  making  laws  and  of  compelling  their 
enforcement  better  than  boards  and  commissions.  If 
we  have  some  department  working  with  our  legislature 
and  have  that  department  between  the  sessions  serve 
the  investigating  committees,  we  can  be  sure  that  there 
is  always  a  check  upon  the  action  of  our  boards  and 
commissions  and  that  there  is  always  at  hand  a  remedy 
for  evil  in  the  hands  of  the  people  themselves.  They 
can  always  ask  for  an  investigating  committee  for  any 
commission  and  the  report  of  that  committee  will  prob- 
ably result  in  a  good,  sound  law.  In  England  to-day 
there  is  a  movement  to  establish  a  "Permanent  staff" 
for  investigating  committees  intended  to  accomplish  this 
very  purpose. 


228  THE   WISCONSIN  IDEA 

At  the  present  time  in  nearly  all  of  our  states,  an 
able  lawyer  may  go  before  a  committee  composed  of 
good  farmers  and  merchants  and  though  he  may  not 
speak  the  truth,  he  will  sometimes  have  that  committee 
absolutely  at  his  mercy.  He  can  tell  them  privately  or 
in  committee  that  a  certain  bill  is  unconstitutional  or 
has  been  a  failure  where  tried  and  defy  individual  mem- 
bers to  answer  him ;  he  has  behind  him  many  clerks  to 
gather  statistics  of  all  sorts  for  his  use  before  that  com- 
mittee. What  can  the  individual  member  of  that  com- 
mittee or  the  committee  itself  do  under  those  circum- 
stances? Of  course,  the  committee  man  does  not  care 
to  make  himself  ridiculous  and  so  he  states  the  business 
in  a  half-hearted  report  or  acquiesces  in  the  statements 
of  the  attorney  before  the  committee.  If  an  entirely 
non-partisan  and  non-political  department  existed,  com- 
posed of  men  of  ability,  there  is  no  reason  why  that  com- 
mittee could  not  require  briefs  to  be  filed  by  these  attor- 
neys for  private  interests  and  invoke  the  aid  of  this 
department.  In  this  case  it  would  be  more  difficult  to 
deceive  by  misstatements  and  the  committee  member 
could  investigate  for  himself  if  he  were  honest  and 
wanted  to  do  his  duty. 

As  to  our  department  in  Wisconsin,  we  are  not  trying 
to  influence  our  legislators  in  any  way,  we  are  not  upon 
one  side  or  another  of  any  question  nor  are  we  for  or 
against  anybody  or  anything ;  we  are  merely  a  business 


THE   LEGISLATURE  22Q 

branch  of  the  government.  We  are  not  dictating  legis- 
lation but  are  merely  servants  of  the  able  and  honest 
legislators  of  our  state,  clerks  to  gather  and  index  and 
put  together  the  information  that  these  busy  men  desire ; 
it  is  a  business  proposition.  Question  after  question 
asked  of  us  by  the  legislature  is  investigated  in  as  scien- 
tific a  manner  as  time  and  means  permit.  The  legis- 
lator sometimes  does  not  know  where  he  gets  the  infor- 
mation ;  the  professor  of  economics,  of  political  science, 
the  public  men,  the  chemist  or  scholar  does  not  know 
where  it  goes.  The  great  body  of  public  men  through- 
out the  country  can  be  drawn  upon  for  information  to 
help  our  legislators.  Committees  too,  realize  the  worth 
of  this  research  work  and  a  large  number  of  the  bills 
before  them  are  investigated  by  this  department.  Com- 
mittees working  upon  abstract  and  technical  subjects 
have  at  their  command  in  concise  form,  letters,  opinions 
and  other  data  from  experts  all  over  the  country  upon 
the  particular  subjects  in  hand.  We  may  not  have 
accomplished  much  but  at  least  we  have  done  something 
where  nothing  was  done  formerly.  The  department  now 
has  four  expert  draftsmen  during  the  session  at  the 
service  of  the  legislature  and  about  twenty-five  librarians, 
clerks,  research  workers,  etc. 

Has  there  been  criticism  ?  Yes,  but  it  is  chiefly  con- 
fined to  this  one  point;  it  makes  it  too  easy  for  a  man 
to  draft  a  bill !  Is  it  a  just  criticism  to  say  that  the 


230  THE   WISCONSIN  IDEA 

carpenter  has  tools  which  are  too  good  ?  What  is  really 
meant  is  that  too  many  bills  are  drafted.  There  are  too 
many  bills  drafted  but  there  are  no  more  in  proportion, 
considering  the  great  agitation  going  on  in  this  state 
than  in  other  states.  Indeed  they  are  far  less  than  in 
the  old  days  when  annual  sessions  were  held  for  the 
purpose  of  giving  away  franchises  and  passing  hundreds 
of  private  and  local  laws.  Regulative  bills  and  those 
of  a  general  nature  have  increased  recently  in  congress 
and  in  every  state  legislature  in  this  country  as  well  as 
in  foreign  countries.  It  means  that  democracy  now  is 
alert  and  is  trying  to  demolish  the  old  statutes  and  install 
new  ones. 

It  is  a  good  condition  for  the  country  —  a  nation  is 
safer  than  when  too  much  complacency  exists.  The 
deadened  or  uncivilized  nations  are  the  only  ones  which 
do  not  require  change  in  laws. 

As  Walter  Bagehot  says:  "There  is  a  diffused  desire 
in  civilized  communities  for  an  adjusting  legislation; 
for  a  legislation  which  should  adapt  the  inherited  laws 
to  the  new  wants  of  a  world  which  now  changes  every 
day.  It  has  ceased  to  be  necessary  to  maintain  bad 
laws,  because  it  is  necessary  to  have  some  laws.  Civili- 
zation is  robust  enough  to  bear  the  incision  of  legal  im- 
provements." England  is  a  good  example  of  the  new 
activity  in  legislation. 

Any  flood  of  legislation  may  easily  be  stopped  by  the 


THE   LEGISLATURE  231 

legislators  if  they  determine  to  consider  only  the  essen- 
tial and  to  disregard  the  remainder.  Year  after  year, 
the  author  has  offered  three  suggestions  which  have 
been  as  regularly  dismissed.  The  first  of  these  proposed 
remedies  is  the  establishment  of  a  legislative  rule  com- 
pelling a  member  to  obtain  permission  by  an  aye  and 
no  vote  of  the  legislature  before  introducing  a  bill.  All 
members  would  then  go  on  record  as  to  whether  they 
wanted  to  consider  the  subject  of  the  bill  or  not.  Of 
course,  the  party  in  power  would  practically  make  the 
selection  and  be  responsible  for  the  introduction  of  the 
principal  platform  bills.  But  the  member  who  comes  to 
an  American  legislature  wants  his  constituency  to  realize 
that  he  is  doing  something  and  the  introduction  of  bills 
is  a  sure  sign  of  activity  on  his  part.  Custom  is  so  in- 
grained that  it  cannot  be  changed  in  a  day.  There  are 
many  men  who  do  not  care  to  father  half  the  bills  they 
present  but  the  fellow  at  home  is  a  good  friend  and 
therefore  they  must  be  introduced.  If  such  a  rule 
existed  how  easy  it  would  be  to  explain  to  his  friend  that 
under  the  aye  and  no  vote  the  bill  was  refused  considera- 
tion. It  is  merely  a  matter  of  self-control  which  the 
legislature  refuses  to  exercise. 

The  second  suggestion  was  that  much  of  the  private 
and  local  legislation  could  be  abolished  or  submitted  to 
some  procedure  like  that  of  the  English  private  bill  pro- 
cedure. In  Wisconsin  about  six  hundred  bills  could  be 


232  THE   WISCONSIN  IDEA 

disposed  of  by  this  device  combined  with  a  proper  home 
rule  bill.  To-day,  in  the  advanced  state  of  Wisconsin 
there  is  a  fish  commission  which  scientifically  selects 
plans  for  the  propagation  of  fish.  Every  session  the 
legislature  has  to  consider  about  one  hundred  and  fifty 
or  more  fish  bills  relating  to  every  creek  and  pond  in 
the  state.  It  does  seem  that  if  the  commission  is  per- 
mitted to  put  fish  into  a  lake,  it  could  be  trusted  to 
determine  rules  as  to  the  desirability  of  taking  them  out. 

The  third  recommendation  was  that  no  bill  be  drafted 
in  the  legislative  reference  department  unless  the  pro- 
spectus submitted  be  signed  by  ten  or  fifteen  members. 
This  protection  has  not  yet  been  granted.  If  the  de- 
partment had  this  or  some  similar  defence,  it  could 
devote  the  time  of  its  lawyers  to  the  more  important 
bills.  However,  most  of  the  bills  before  the  legislature 
are  drafted  by  attorneys  throughout  the  state  and  sent 
to  the  members  in  all  kinds  of  forms.  The  members 
then  submit  the  bills  for  revision,  so  that  they  may 
follow  the  legislative  rules.  In  this  way  over  90  per 
cent  of  the  bills  before  the  Wisconsin  legislature  in  some 
way  come  in  touch  with  this  department. 

The  relation  of  this  work  to  a  deeper  study  of  statute 
law  and  the  principles  underlying  it  will  be  the  next 
consideration. 


CHAPTER  IX 
THE  LAW  AND  ECONOMIC  PROGRESS 

THE  growing  impatience  with  our  courts  in  America 
is  very  evident.  The  relation  of  the  principles  discussed 
in  this  book  to  court  procedure  needs  some  further  ex- 
planation. Thus  far  the  legislature  and  the  adminis- 
tration of  the  laws  have  been  the  subjects  of  comment 
and  it  is  with  great  pleasure  that  some  consideration  is 
now  given  the  Wisconsin  courts.  But  before  so  doing, 
a  moment's  pause  to  reflect  on  the  whole  question  of 
judge-made  law,  economics  and  statute  making  may  not 
be  out  of  place. 

We  have  been  so  thoroughly  disciplined  in  America 
to  the  infallibility  of  a  written  constitution  as  inter- 
preted by  the  courts,  that  only  recently  have  we  had 
impressed  upon  us  instance  after  instance  which  disclose 
the  hiatus  between  economic  conditions  and  court  deci- 
sions, culminating  in  the  decision  of  the  New  York 
court  of  appeals  in  the  workmen's  compensation  case. 
Can  it  be  possible  that  a  court  would  practically  recog- 
nize the  humanity,  justice,  right  and  necessity  of  a  law 
prepared  with  the  greatest  care  by  the  legislature  and 
at  the  same  time  declare  it  unconstitutional?  Can  it 

233 


234  THE   WISCONSIN   IDEA 

be  possible  that  there  are  standards  of  right  and  justice 
which  public  opinion  recognizes  and  which  violate  a 
constitution,  the  very  bulwarks  of  justice  and  right  made 
especially  to  preserve  these  very  things  ?  Such  a  situa- 
tion seems  to  the  layman  absurd  and  nonsensical.  Yet 
has  not  this  hiatus  existed  for  many  years  and  become 
ingrained  into  our  very  system?  A  thousand  cases 
show  that  it  has.  Is  not  the  necessity  for  devices  such 
as  the  railroad  and  industrial  commissions,  evidence 
enough  that  a  jurisprudence  different  from  that  which 
we  have  been  teaching  in  our  law  schools  must  be  de- 
veloped ?  Is  it  not  necessary  to  teach  those  who  are  to 
become  our  judges  an  economic  viewpoint  in  addition 
to  the  stiff  doctrine  of  precedent  ?  What,  after  all,  are 
the  advantages  of  the  rulings  of  commissions?  Simply 
that  those  rulings  are  based  upon  economic  facts  and 
not  upon  precedent.  By  instituting  commissions  we 
have  established  code  law  as  understood  in  the  old 
countries  and  at  the  same  time  have  laid  the  foundations 
for  what  Roscoe  Pound  of  the  Harvard  law  school  calls 
"Sociological  jurisprudence."  Are  not  the  rulings,  based 
as  they  are  upon  the  police  power,  evidence  enough  of 
the  fact  that  the  old  procedure  of  our  courts,  the  old 
doctrine  of  precedent,  is  giving  way  to  the  newer  doc- 
trine of  paramount  necessity  ? 

The  judges  are  not  entirely  in  fault :  a  portion  of  the 
blame  lies  elsewhere.     Old  forms  give  way  but  slowly 


THE  LAW  AND  ECONOMIC  PROGRESS      235 

to  new  growths.  The  astounding  rapidity  of  the  progress 
of  modern  industrial  and  commercial  machinery  has  left 
many  a  good,  just  and  able  judge  perplexed  and  be- 
wildered, with  his  flag  nailed  to  the  mast.  Can  we 
expect  more  from  the  judges  than  we  do  from  the  equally 
bewildered  economist  or  legislator  ? 

Particularly  have  questions  relating  to  the  control  of 
great  monopolies  proved  too  complex  for  the  courts. 
However  good  a  court  may  be,  it  is  a  court  and  not  an 
administrative  body.  The  discontent  with  the  rulings 
of  the  commerce  court  demonstrates  the  truth  of  this 
statement.  The  attempt  by  the  supreme  court  to  estab- 
lish some  kind  of  administrative  machinery  to  carry  out 
its  rulings  in  the  tobacco  case  is  another  case  in  point. 
Such  matters  are  not  within  the  province  of  the  court 
and  they  have  no  machinery  to  handle  economic  cases 
of  any  complexity  or  magnitude.  A  recent  editorial  in 
the  Saturday  Evening  Post,  commenting  upon  the  com- 
merce court,  makes  the  following  pertinent  statement :  — 

"  Suppose  you  were  building  a  dam  and  had  employed  a  com- 
petent civil  engineer ;  but  your  lawyer  insisted  that  all  the  engi- 
neer's orders  must  be  subject  to  review  by  him.  In  the  course  of 
some  years,  if  the  engineer  were  sufficiently  patient  in  explaining 
the  import  of  his  various  orders  the  lawyer  would  understand  all 
the  problems  involved  in  the  construction  of  the  dam ;  in  short, 
he  would  become  nearly  as  expert  as  the  engineer  himself. 

"  However,  while  the  lawyer  was  acquiring  this  expert  knowl- 
edge you  wouldn't  be  apt  to  make  much  progress  with  the  dam. 


236  THE   WISCONSIN   IDEA 

"  That  is  about  the  situation  created  by  the  new  commerce 
court.  The  Interstate  Commerce  Commission,  by  years  of  in- 
vestigation, has  become  familiar  with  the  problems  of  transporta- 
tion. The  commerce  court  act  simply  makes  this  expert  body 
subject  to  a  body  that  does  not  know  so  much  about  transporta- 
tion. That  the  general  effect  of  the  court  will  be  to  paralyze  the 
Commission  —  at  least,  until  such  time  as  the  court  itself  becomes 
expert  in  transportation  —  seems  most  likely." 

A  new  procedure  has  been  needed,  but  that  does  not 
excuse  the  courts  from  making  every  effort  to  meet  the 
matter  halfway  by  dispensing  with  a  large  part  of  the 
useless  load  of  precedent  and  dilatory  and  costly  prac- 
tices adverse  to  the  poor  man.  They  can  be  blamed 
for  that  needless  conservation  and  justly  so.  They  must 
take  even  a  broader  notice  of  sociological  factors  or  they 
will  be  discredited.  A  great  deal  of  injustice  is  done 
before  public  conscience  is  sufficiently  aroused  to  check 
by  means  of  necessary  statutes  those  evils  which  are 
constantly  arising.  But  how  shall  we  find  a  remedy  for 
the  rapidly  accumulating  evils  of  to-day,  when  the 
courts  are  still  further  hampered  by  precedent  which  is 
recognized  by  every  one  to  be  as  dead  as  Adam  ? 

Even  statute  law  lags  far  behind  public  opinion,  but  as 
Judge  Dicey  says  in  his  book  "Law  and  Opinion," 

"  If  a  statute  ...  is  apt  to  reproduce  the  public  opinion  not  so 
much  of  to-day  as  of  yesterday,  judge-made  law  occasionally 
represents  the  opinion  of  the  day  before  yesterday." 


THE   LAW  AND   ECONOMIC   PROGRESS  237 

The  story  of  history  is  repeated  time  and  time  again, 
as  Professor  E.  A.  Ross  points  out  in  his  "  Social  Psy- 
chology" :  — 

"  Law  stiffens  with  the  accumulation  of  precedent,  or  the  grow- 
ing prestige  of  dead  commentators,  —  a  Gaius  or  an  Ulpian,  a 
Coke  or  a  Blackstone.  Says  Amos :  '  So  soon  as  a  system  of  law 
becomes  reduced  to  completeness  of  outward  form,  it  has  a  natural 
tendency  to  crystallize  into  a  rigidity  unsuited  to  the  free  applica- 
tions which  the  actual  circumstances  of  human  life  demand.  The 
invariable  reaction  against  this  stage  is  manifested  in  a  progressive 
extension,  modification,  or  complete  suspension  of  the  strict  legal 
rule  into  which  the  once  merely  equitable  principle  has  been  grad- 
ually contracted.'  Equity  itself,  at  first  an  attempt  to  correct  the 
mechanical  operation  of  law  by  enlarging  the  sphere  of  judicial 
discretion  at  the  expense  of  technicality,  gets  bound  by  precedents, 
acquires  a  legal  shell,  and  becomes  merely  a  competing  system  of 
law  destined  in  the  end  to  complete  absorption. 

"  Litigation  gets  so  involved  in  elaborate  procedure  that  no 
one  dares  trust  himself  to  it  without  the  guidance  of  an  expert. 
A  lawsuit,  originally  a  quest  for  truth  and  justice,  becomes  a  regu- 
lated contest  between  professionals,  to  be  decided  according  to 
the  rules  of  the  sport.  '  The  inquiry  is  not,  What  do  substantive 
law  and  justice  require?  Instead  the  inquiry  is,  Have  the  rules 
of  the  game  been  carried  out  strictly  ?  If  any  material  infraction 
is  discovered,  just  as  the  football  rules  put  back  the  offending  team 
five  or  ten  yards,  as  the  case  may  be,  our  sporting  theory  of  justice 
awards  new  trials,  or  reverses  judgments,  or  sustains  demurrers 
in  the  interest  of  regular  play.'  " 

Indeed,  precedent  has  become  so  sacred  and  so  con- 
fused with  the  principles  the  fathers  laid  down  in  the 


238  THE    WISCONSIN  IDEA 

grandest  charter  of  human  rights  the  world  has  ever 
seen,  that  if  one  attacks  a  foolish  decision,  up  pops  little 
Mr.  Pettifogger  and  angrily  accuses  him  of  trying  to 
undermine  the  very  foundation  of  government  —  the 
constitution  itself. 

Many  of  our  law  schools  have  become  mere  trade 
schools,  and  their  graduates,  instead  of  being  men  well 
founded  in  the  fundamental  principles  of  law,  turn  out 
to  be  attorneys  who  know  all  the  tricks  of  the  techni- 
calities, but  are  sadly  deficient  in  a  knowledge  of  the 
economic  conditions,  surrounding  law. 

How  can  we  hope  for  anything  else  than  a  turning 
to  commissions  for  help,  right  and  justice  with  such  a 
growing  impatience  of  the  justice  administered  by  these 
tradesmen?  The  law  schools,  lacking  as  they  do  real 
appreciation  of  history  and  sympathy  with  democracy, 
have  become,  in  many  instances,  seats  of  Bourbonism. 
If  we  are  to  believe  with  these  men  that  the  only  law  is 
the  judge-made  law,  everything  is  in  a  static  condition 
and  the  efforts  of  the  legislature  to  change  conditions  are 
foolish  and  needless. 

The  fact  is  that  away  down  in  their  hearts  a  goodly 
number  of  lawyers  taught  in  our  modern  schools  really 
do  not  believe  in  representative  government  at  all. 
That  for  which  our  forefathers  fought  is  to  them  a  thing 
merely  to  be  tolerated.  Mr.  Charles  Bonaparte  may 
not  be  considered  the  most  conservative  lawyer  of  his 


THE  LAW  AND   ECONOMIC  PROGRESS  239 

class  in  America,  and  yet  in  an  article  in  the  Green  Bag, 
October  1911,  on  the  "Judges  as  Law  Makers"  he  says : 

"  Our  statutes  are  in  great  part  the  work  of  mere  vote-hunters 
and  demagogues,  enacted  for  the  temporary  ends  of  politicians  or 
artfully  contrived  to  advance  the  selfish  purposes  of  unscrupulous 
men,  often  the  very  men  against  whose  wrong-doing  they  pretend 
to  provide  safeguards.  At  best,  they  are  seldom  more  than  rudi- 
mentary, embryonic  laws,  destined  and  intended  to  be  moulded 
into  their  final  and  practical  shapes  by  the  legislative  action  of 
the  courts  in  professedly  construing  but  really  completing  them." 

"  Our  judges  are  far  more  capable  than  are  our  legislators  to 
give  expression  and  effect  to  the  people's  will ;  they  are  also  more 
competent  and  more  faithful  interpreters  of  what  is  the  people's 
will,  because  far  less  liable  to  be  misled  as  to  this  by  mere  outcry 
from  the  press  or  the  tawdry  gabble  of  agitators ;  for,  ever  since 
the  days  of  the  Three  Tailors  of  Tooley  Street,  the  query:  '  What 
is  '  or  '  Who  are  the  people  ?  '  has  been  matter  of  debate  and  often 
of  dispute ;  and,  although  it  has  received,  for  practical  purposes, 
many  different  answers  in  different  countries  and  at  different  times, 
the  legal '  people,'  that  is  to  say,  that  part  of  the  community  em- 
powered by  law  to  speak  and  act  for  the  whole,  has  been  always 
and  everywhere  a  minority  of  all  the  human  beings  subject  to  the 
'  people's  '  will." 

If  this  is  true,  why  all  this  bother  about  representa- 
tive government?  Why  not  do  away  with  it  at  once 
or  turn  it  all  over  to  the  courts  ? 

Perhaps  the  courts  are  not  all  wise;  perhaps  the 
fathers  who  made  the  constitution  were  wiser  than 
they  may  seem  to  the  learned  product  of  our  so-called 


240  THE   WISCONSIN  IDEA 

law  schools.  It  may  be  that  with  a  few  scientific  tools 
in  the  hands  of  our  legislators,  we  may  find  a  way  out 
of  the  difficulty.  It  may  be  that  we  can  build  up  a 
code  of  law  which  may  be  taught  in  real  law  schools,  so 
that  they  will  produce  men  who  will  go  to  the  bench 
believing  in  some  other  maxim  than  "What  is,  is." 

The  ridiculous  assumption  of  fatherhood  and  pro- 
tectorship which  some  American  judges,  in  their  pom- 
posity, have  attained,  makes  itself  felt  not  only  in  the 
courts  but  in  the  attitude  of  practically  every  lawyer 
who  comes  to  the  legislative  halls.  It  has  been  the 
means  of  retarding  the  march  of  progress  in  legislation 
and  of  establishing  into  the  body  of  our  government 
certain  fallacies  which  have  been  a  real  and  potential 
danger  to  the  whole  fabric  of  the  state. 

Take  for  example  the  power  of  the  attorney-general 
in  many  states.  This  official  in  our  state  is  elected  in 
the  same  manner  as  other  state  officials.  Suppose  that 
he  is  opposed  to  some  law  and  wishes  to  remove  it  from 
the  statute  books.  The  only  step  necessary  is  to  have 
the  law  submitted  to  him  for  an  opinion  and  he  can 
declare  it  unconstitutional. 

The  supreme  court  itself  has  more  limitations,  in  that 
it  must  at  least  have  a  case  presented  before  it  can  hold 
hearings  or  render  a  decision.  The  attorney-general 
alone  has  the  remarkable  power  of  despatching  a  law 
put  upon  the  statute  books  by  the  will  of  the  people  or 


THE  LAW  AND  ECONOMIC  PROGRESS       241 

so  modifying  it  that  it  is  rendered  useless  and  practically 
void. 

But  this  is  not  all.  Let  us  suppose  the  state  auditor 
thinks  a  certain  great  commission  unconstitutional  and 
refuses  its  payments  while  awaiting  a  decision  from  the 
attorney-general.  If  the  attorney-general  declares  that 
it  is  unconstitutional  he  can  then  appear  for  the  con- 
stitution as  protecting  the  state  treasury  against  the 
commission  itself  —  the  embodiment  of  a  law  estab- 
lished by  the  will  of  the  people  and  passed  by  its  repre- 
sentatives. Here  then  is  the  situation  —  the  state  is 
paying  its  attorney  for  appearing  against  it  to  destroy 
a  law  which  it  has  decreed  shall  exist !  How  absurd ! 
And  yet  this  actually  occurred  in  the  recent  Wisconsin 
civil  service  law  case,  which  law  was  happily  sustained 
by  the  supreme  court.  Both  the  auditor  and  the  attor- 
ney-general were  doubtless  honest  in  their  beliefs  and 
should  not  bear  the  blame,  but  such  a  system  —  the 
result  of  the  spirit  of  law  schools  which  teach  that  law- 
yers and  judges  are  the  only  protectors  of  our  liberties 
in  all  matters  —  is  certainly  at  fault.  The  blame  rests 
largely  on  the  law  schools  for  failing  to  teach  the  real 
science  of  government  in  relation  to  these  matters  and 
for  sending  men  into  our  public  life  who  acquiesce  in 
such  ideas.  Two  men  were  talking  about  this  very 
case  and  one,  not  a  lawyer,  was  protesting  that  the 
system  which  permitted  such  a  situation  was  not  right. 


242  THE   WISCONSIN  IDEA 

The  other,  a  prominent  lawyer,  said,  "Why,  you  are 
talking  like  a  fool ;  while  I  was  district  attorney  of  - 
county,  almost  my  entire  time  was  spent  counteracting 
the  work  of  that  fool  county  board." 

Such  are  the  conditions ;  the  remedy  is  plain.  There 
is  a  science  of  statute  law  which  is  yet  to  be  developed. 
The  possibility  of  a  jurisprudence  in  the  field  of  statute 
law  making  has  been  realized  by  few  people.  Even  in 
England,  where  an  official  draftsman  is  employed,  prac- 
tically nothing  has  been  done  to  gather  the  history  of 
statutory  enactment. 

Says  Professor  Ernst  Freund  in  his  article  upon 
" Legislation  and  Jurisprudence":  — 

"  For  the  vast  majority  of  the  acts  on  the  statute  books  of  our 
States,  the  reasons  or  considerations  inducing  their  adoption  have 
not  been  formulated.  There  has  often  been  no  discussion  in  the 
legislature  whatever,  or  if  there  has  been,  only  incomplete  accounts 
of  the  debates  have  been  preserved  in  the  daily  press.  It  is  other- 
wise with  regard  to  the  more  important  legislation  of  congress 
and,  in  a  number  of  States,  with  regard  to  the  enactment  of  consti- 
tutions. In  some  branches  of  administrative  legislation  there  are 
comments  and  recommendations  of  official  authorities,  and  revisers' 
notes  furnish  for  a  few  States  valuable  material.  The  whole  amount 
of  this  source  material  is  poor  as  compared  with  what  the  official 
publications  of  England,  France  and  Germany  afford.  A  great 
amount  of  information  for  legislative  history  is  scattered  through 
the  law  reports,  in  cases  construing  statutes  and  pointing  out  de- 
fects, which  led  to  appropriate  amendments.  But  the  current 


THE  LAW  AND  ECONOMIC  PROGRESS  243 

digests  pay  no  particular  attention  to  this  feature  of  the  law  reports, 
and  the  information  is  therefore  not  in  a  readily  available  form  and 
has  not  to  any  considerable  extent  been  utilized. 

"  As  for  the  history  of  operation  of  statutes,  there  has  never 
been  any  systematic  observation  of  the  working  of  the  laws  of 
persons,  property  or  contracts.  Excepting  the  subjects  of  bank- 
ruptcy, divorce  and  to  some  extent  of  personal  injuries,  there  are 
no  civil  judicial  statistics,  still  less,  of  course,  any  information 
regarding  the  legal  relations  that  do  not  reach  the  courts.  In 
codifying  the  German  civil  code,  use  was  made  of  data  collected 
by  the  government  regarding  the  prevalence  of  certain  forms  of 
marital  contracts  and  testamentary  dispositions ;  nothing  of  this 
kind  would  be  available  in  the  United  States.  The  census  bureau 
in  Washington  would  be  the  only  organization  in  this  country  to 
gather  information  of  this  kind,  and  there  is  no  present  prospect 
of  its  undertaking  so  far-reaching  and  difficult  a  work.  Nor  is 
there  any  near  prospect  that  our  States  will  undertake  the  collection 
of  judicial  statistics.  General  impressions  instead  of  exact  and  sys- 
tematic observations  will,  for  a  long  time  to  come,  be  the  basis  upon 
which  the  policy  of  our  civil  legislation  will  be  built,  and  there  is  no 
promise  of  any  radical  advance  of  jurisprudence  in  this  respect. 

"  With  regard  to  revenue  and  police  legislation,  however,  the 
outlook  is  much  more  hopeful.  A  considerable  amount  of  informa- 
tion is  even  now  available  in  the  official  reports  of  the  authorities 
charged  with  the  administration  of  the  various  acts,  which  nat- 
urally deal  to  a  considerable  extent  with  the  administrative  and 
judicial  aspects  of  legislation.  With  the  multiplication  of  control- 
ling and  regulating  boards,  more  and  more  light  will  be  thrown  upon 
the  operation  of  principles  of  constitutional  and  administrative  law. 

"  All  this  material  ought  to  be  collated  and  digested  in  the  same 
manner  as  is  now  done  with  judicial  decisions,  and  the  result. 


244  THE   WISCONSIN   IDEA 

should  be  the  construction  of  a  body  of  principles  of  legislation  to 
supplement  the  existing  body  of  principles  of  law.  Both  in  its 
material  and  in  its  method  this  branch  of  legal  science  must  differ 
considerably  from  the  judicial  jurisprudence  with  which  we  are 
most  familiar ;  but  it  is  a  department  of  our  science  equally  legiti- 
mate and  valuable,  and  destined  to  grow  in  importance  with  the 
increasing  legislative  activity  of  the  modern  state.  .  .  . 

"  Exhaustive  inquiry  into  the  conditions  to  be  regulated,  im- 
partial consideration  of  all  interests  concerned,  and  skilled  and 
careful  draftsmanship  are  equally  indispensable  requirements  to 
produce  legislation  that  is  to  avoid  both  inefficiency  and  injustice. 
In  England,  France  and  Germany  the  observance  of  these  condi- 
tions is  made  possible  by  the  fact  that  the  respective  governments 
introduce  all  important  bills,  that  they  have  the  greatest  facilities 
for  ascertaining  the  facts  underlying  the  proposed  measure,  and 
that  they  command  the  services  of  highly  qualified  officials  acting 
as  draftsmen.  These  conditions  cannot  be  easily  reproduced  in 
a  country  in  which  the  government  has  no  initiative  in  legislation, 
and  in  which  it  is  often  very  difficult  to  place  the  reponsibility  for 
the  framing  and  the  introduction  of  a  measure.  In  recent  years 
a  few  States  have  made  provision  for  officials  who  are  to  aid  in  the 
drafting  of  bills,  and  for  the  systematic  collection  of  information 
regarding  legislation  and  legislative  problems,  and  a  great  deal  of 
valuable  statistical  work  is  done  by  official  bureaus  in  the  States 
and  in  Washington.  It  is  to  be  hoped  that  these  efforts  in  the 
direction  of  improving  and  harmonizing  methods  of  legislation 
will,  in  the  near  future,  be  further  extended,  and  especially  that 
they  will  receive  the  active  support  of  legislative  bodies." 

Besides  the  data  which  Professor  Freund  mentions 
there  is  also  a  large  body  of  material  which  should  be 


THE   LAW   AND   ECONOMIC   PROGRESS  245 

gathered,  indexed  and  classified.  The  expedients  which 
are  put  into  laws  to  make  them  effective,  the  decisions 
and  rules  of  administrative  commissions,  the  decisions  of 
attorney-generals,  bar  associations,  reports  upon  codifi- 
cation, model  laws  or  uniform  laws  —  all  this  data,  if 
made  available,  would  aid  the  legislator  in  his  task. 
Such  material  will  help  him  to  find  out  what  he  can  do, 
and  although  the  classification  of  this  data  is  a  great 
task,  it  should  be  begun  by  some  one.  If  the  legislator 
has  at  hand  this  data  and  makes  use  of  it  as  the  judge 
makes  use  of  the  law  library  and  also  the  skilled  drafts- 
men, his  task  is  made  easy  and  we  may 'hope  for  better 
legislation.  With  the  clerical  help  of  a  skilled  man  at 
his  command  he  can  represent  his  constituents  more 
efficiently. 

For  those  who  decry  the  importance  of  statute  law, 
let  me  call  attention  to  the  fact  that  common  law  means 
speedy  and  certain  justice  and  those  who  profess  to 
revere  common  law  must  look  upon  a  statute  creating 
an  efficient  railroad  commission  as  the  rehabilitation  of 
the  common  law.  If  this  is  so,  surely  the  scientific  data 
relating  to  railroad  commissions  which  can  be  collected 
will  be  of  the  greatest  service  to  our  legislators  and  to 
our  courts  in  the  formulation  of  "  juridical  principles"  and 
in  the  adjustment  to  modern  conditions  of  those  ancient 
principles  which  we  have  been  taught  to  revere  and  to 
believe  are  the  foundation  of  our  liberty  and  justice. 


246  THE   WISCONSIN   IDEA 

Conceding  that  the  legislator  is  able  and  honest  and 
that  many  of  the  proposed  remedies  here  mentioned  will 
be  to  a  degree  efficacious,  what  remedy  can  be  proposed 
which  will  meet  the  circumstances  squarely  and  help  to 
build  up  our  statute  law  ? 

Let  us  suppose  that  the  supreme  court  of  the  United 
States  was  deprived  for  one  instant  of  all  cases,  prece- 
dents and  the  body  of  jurisprudence  which  has  accu- 
mulated, what  would  result  ?  Would  not  the  efficiency 
of  our  judiciary  be  greatly  diminished?  Yet  the  strik- 
ing thing  is  that  the  man  who  makes  the  law,  who  fits 
it  to  economic  conditions,  has  no  such  body  of  guiding 
principles  to  help  him.  His  task  is  tenfold  more  difficult 
than  that  of  the  judge. 

This  will  seem  strange  to  the  lawyer,  who  will  imme- 
diately say  that  he  has  the  decisions  of  the  courts.  So 
he  has,  but  they  do  him  little  good.  They  give  him  the 
limitation  but  often  no  positive  guidance.  Let  the  man 
who  wishes  a  perfect  state  'law  regulating  the  issue  of 
stocks  and  bonds  of  corporations  try  to  draft  such  a 
law  if  he  wishes  to  learn  what  positive  principles,  legal 
or  economic,  he  can  sift  out  from  the  mass  of  legal  deci- 
sions which  must  be  consulted. 

Let  the  legislator  try  to  make  a  law  regulating  rebates 
and  he  will  find  at  once  that  the  'kinds  of  economic  re- 
bates may  be  many  times  greater  than  will  fit  any 
definition  of  the  courts.  It  is  necessary  to  have  this 


THE  LAW  AND  ECONOMIC  PROGRESS      247 

economic  data  as  well  as  the  legal  and  we  must  find  out 
how  these  laws  work  so  as  to  profit  by  the  experience 
of  others.  This  is  no  small  task.  It  is  a  far  greater 
problem  than  that  of  building  up  a  law  library  or  gather- 
ing jurisprudence  of  the  past. 

Professor  Ernst  Freund  in  a  recent  pamphlet  upon 
"Legislation  and  Jurisprudence"  says:  — 

"  What  does  it  mean,  to  say  that  the  fundamental  law  secures  a 
certain  amount  of  liberty,  if  it  is  not  said  how  much,  or  that  it  for- 
bids unjust  discrimination,  if  the  injustice  is  not  denned?  It  is 
the  merest  commonplace  that  some  restraint  of  liberty  of  contract 
and  business,  some  discrimination,  is  not  merely  valid,  but  essen- 
tial to  the  interests  of  society.  Can  the  fundamental  law  be  satis- 
fied with  the  proclamation  of  rights  of  absolutely  indeterminate 
content,  directly  contrary  to  other  recognized  principles,  or  is  not 
limitation  and  definition  of  some  sort  absolutely  essential  to  an 
intelligible  rule  of  law?  The  courts  have  given  us  criticism,  de- 
nunciation, and  condemnation,  but  no  positive  guidance.  The 
course  of  adjudication  is  marked  by  divided  jurisdictions  and 
divided  courts,  resulting  in  a  lamentable  uncertainty  as  to  the 
limits  of  legislative  power." 

What  is  needed  is  a  body  of  jurisprudence  or  quasi- 
jurisprudence  —  the  formation  of  a  body  of  principles 
directly  relating  to  the  whole  subject  of  statute  law. 
The  judge  goes  into  the  law  library  and  finds  the  classi- 
fied law  and  jurisprudence  of  the  past ;  the  legislator 
comes  for  a  few  months  every  year  to  make  laws  with  no 
such  data  at  his  command. 


248  THE   WISCONSIN  IDEA 

There  is  no  man  for  whom  the  study  of  comparative 
legislation  will  be  of  more  benefit  than  the  business  man. 
Whether  we  wish  it  or  not,  we  are  taking  up  the  things 
with  which  Europe  has  been  working.  The  great  danger 
is  that  radicals  will  force  these  things  upon  us  without 
careful  study.  We  see  Germany  advancing  in  this  in- 
dustrial progress  despite  laws  which  the  business  man 
in  America  would  look  upon  as  ruinous.  It  means  that 
Germany  has  an  administration  and  conditions  which 
make  these  laws  helpful  instead  of  hurtful  to  the  business 
man.  These  laws  must  not  be  incorporated  into  our 
statutes  without  any  study  whatsoever.  The  study  of 
comparative  law  and  the  gathering  of  data  which  will 
show  the  benefits  of  these  laws  should  be  encouraged  by 
the  business  man  of  America. 

The  necessity  for  the  study  of  comparative  law  and 
comparative  institutions  in  America  is  demonstrated 
repeatedly  in  a  department  like  the  legislative  reference 
department.  For  instance,  a  man  brought  to  this  depart- 
ment for  drafting,  a  bill  which  was  to  be  introduced  in  the 
Wisconsin  legislature.  Upon  research  it  was  found  that 
the  bill  related  to  special  assessments  in  the  city  of  Phila- 
delphia. The  bill  would  have  been  entirely  out  of  harmony 
with  the  Wisconsin  laws  and  it  would  have  been  a  disaster 
had  that  law  been  written  into  the  Wisconsin  statutes. 

This  situation  is  well  depicted  in  a  conversation  be- 
tween a  man  from  Iowa,  who  had  charge  of  the  state 


THE   LAW  AND  ECONOMIC  PROGRESS 


249 


prison  there,  and  a  South  Carolinian,  who  held  a  similar 
position  in  his  state.  The  Iowa  man  told  about  the 
beauty  of  the  Iowa  law  and  how,  instead  of  making 
hopeless  criminals,  the  idea  was  to  fit  up  the  prisons  so 
well  that  the  men  would  receive  encouragement,  hope, 
and  also  the  decent  necessities  of  life,  with  occasionally 
little  comforts.  The  idea,  he  said,  was  not  to  utilize 
the  prisoner  by  making  him  a  mere  hopeless  animal. 
The  South  Carolina  man  listened  in  wonder.  "  Why," 
said  he,  "how  do  you-all  keep  them  out  of  prison  ?  If  we 
had  such  conditions  down  in  South  Carolina  we  would 
have  all  of  our  poor  white  people  and  our  negroes  in  jail." 

The  laws  must  be  adapted  to  the  economic,  industrial 
and  social  conditions  of  each  community,  for  the  different 
communities  vary  in  America. 

Is  it  not  a  sensible  and  safe  thing  to  create  some  bureau 
on  a  large  scale  for  the  study  of  comparative  law  and 
jurisprudence  ? 

Diagram  VII  is  suggestive  of  the  manner  in  which  this 
comparative  law  —  which  may  be  termed,  for  lack  of  a 


LAW 
LIBRARY 


INTERPRE- 
TATION 


LAW 

MAKING 


DIAGRAM  VII 

better  name,  "Jurisprudence  of  statute  law  "  —  may  be 
used  so  that  it  may  be  of  some  direct  help  to  the  legislator. 


250  THE   WISCONSIN  IDEA 

The  mass  of  data  represented  by  i,  2,  3,  4,  5,  the  judge 
uses  in  the  interpretation  of  law.  The  mass  of  data 
represented  by  6,  7,  8,  9,  10,  n,  12,  13,  14,  15,  16,  the 
legislator  uses  in  the  making  of  law.  He  must  not  only 
use  what  the  judge  uses  but  he  must  also  obtain  the  facts, 
sociological  and  critical. 

The  legislation  throughout  the  world,  the  model  laws, 
the  cases  which  interpret  them,  the  opinions  of  adminis- 
trative officers,  the  investigation  of  economists  and  the 
statistics  of  the  actual  working  of  laws  —  a  collection  of 
this  data  is  absolutely  necessary  and  especially  so  to-day, 
when  economic  conditions  are  so  constantly  shifting  and 
changing. 

Of  course  the  above  diagram  does  not  tell  the  whole 
story.  A  law  is  made  not  by  the  courts  or  by  the  legis- 
lature or  still  less  by  administrative  bodies.  It  is  made 
by  all  of  these  forces.  It  is  good  in  such  proportion  as 
these  bodies  are  efficient  and  as  their  procedure  is  just 
and  rapid. 

However  strong  a  statute  may  be,  if  its  enforcement  is 
subject  to  tedious  delay  caused  by  outworn  procedure 
the  law  is  not  so  efficient.  If  a  statute  fails  of  enforce- 
ment because  of  the  inefficiency  of  corrupt  administra- 
tors, then  again  so  much  is  taken  from  our  law. 

It  is  plain  to  any  one  who  has  read  thus  far  that  in  Wis- 
consin we  have  begun  some  sort  of  a  systematic  study 
for  the  improvement  of  the  general  conditions  affecting 


THE  LAW  AND  ECONOMIC  PROGRESS      251 

legislation.  The  following  diagram  (VIII)  illustrates  just 
how  this  study  is  proceeding.  It  may  provide  a  sugges- 
tion for  a  new  kind  of  law  school,  one  which  will  include 
all  of  the  studies  necessary  if  representative  government  is 
to  continue  to  exist  and  retain  the  confidence  of  the  people. 


DIAGRAM  VIII 

Here  are  three  great  fields  for  research :  — 

A.  Legislative  method  and  statute  law. 

B.  Administrative  methods. 
Expert  help. 

C.  Real  jurisprudence,  broad  study  of  legal  principles 

••»— i»*-»««*^Iw|'*»a«N«aJln«»»«n«**e««»«^ 

and  procedure. 

In  the  centre  of  the  plan  is  the  word  "statute."  To 
the  right  is  a  square  representing  the  legislature.  Now 
this  diagram  is  to  demonstrate  that  the  law  is  not  made 
by  any  one  body  —  by  the  legislature,  the  administration, 


252  THE   WISCONSIN  IDEA 

or  the  courts  —  but  by  all  of  them.  If  the  legislature  con- 
structs the  law  properly,  there  is  a  chance  that  the  ad- 
ministration and  the  interpretation  of  the  courts  will  be 
good.  But  if  the  legislation  is  wrong  in  the  beginning, 
there  is  no  chance  for  any  other  body  to  rectify  it  to  any 
degree.  So  the  suggestion  is  simply  this :  we  must  build 
behind  the  legislature  a  body  of  comparative  law  and  ex- 
perience to  demonstrate  how  these  laws  may  be  better 
made.  To  accomplish  this  we  need  the  architectural 
department  which  has  been  described  in  the  preceding 
chapter. 

This  mass  of  comparative  data  cannot  be  properly 
built  up  unless  our  law  schools,  our  political  science  and 
economic  departments,  cooperate  so  that  we  may  study 
the  principles  of  statute  law,  of  legislative  procedure, 
and  the  whole  machinery  of  law-making.  Our  schools 
must  go  even  further  than  this ;  they  must  study  scien- 
tifically the  whole  question  of  administration.  In  the 
diagram  on  page  251,  "A  "  must  accompany  "B"  Our 
administrative  bodies  must  be  based  upon  solid  principles 
and  to  thoroughly  understand  these  principles  of  admin- 
istration, we  must  study  and  discuss  them.  The  estab- 
lishment of  the  "Training  school  for  public  service'1 
in  New  York  City,  connected  with  the  "  Bureau  of  mu- 
nicipal research,"  is  an  example  of  what  may  be  done  in 
this  field.  The  time  has  passed  when  political  scientists 
only  talk  of  these  things ;  they  must  be  studied  close  at 


THE  LAW  AND  ECONOMIC  PROGRESS      253 

hand  and  something  done  speedily  to  remedy  conditions. 
We  must  study  the  procedure  of  the  courts  in  reference 
to  the  actual  making  of  the  law  and  its  administration ; 
and  our  law  schools  must  institute  departments  for  re- 
search into  law.  Until  such  departments  are  established 
in  our  law  schools,  they  will  continue  to  turn  out  at- 
torneys, not  lawyers.  We  have  here  in  Wisconsin  made 
a  slight  step  forward  in  the  collection  of  material  and  its 
classification  in  the  legislative  reference  department. 
Students  not  only  from  the  state  but  from  the  entire 
country  are  availing  themselves  of  its  material.  As  ex- 
amples of  "B  "  we  have  the  work  of  the  expert  commis- 
sions and  classes  in  the  principles  of  administration  in  the 
university  and  the  public  affairs  board  created  by  the 
1911  legislature,  having  for  its  duties  the  reorganization  of 
the  administrative  bureaus  and  the  establishment  of  effi- 
ciency records  and  uniform  accounts.  Illustrative  of  "  C," 
we  have  comparatively  little,  but  the  regents  of  the  uni- 
versity have  set  aside  a  small  fund  for  the  study  of  crim- 
inal procedure.  University  professors  connected  with 
the  law  school  have  been  actively  working  in  this  field. 
A  strong  branch  of  the  Society  for  the  reform  of  criminal 
procedure  exists  and  an  active  campaign  is  being  carried 
forward.  It  must  be  said,  however,  that  in  none  of  the 
fields,  "A"  "B,"  or  "C,"  has  the  law  school  given  the  help 
it  should.  It  is,  however,  to  the  views  of  Wisconsin  judges 
that  we  owe  the  forward  movement  in  the  work  of  "  C." 


254  THE   WISCONSIN  IDEA 

A  page  from  the  catalogue  of  the  University  of  Wis- 
consin illustrating  courses  which  relate  to  public  matters. 

26.  The  Theory  and  Practice  of  Legislation.  A  study  of  the 
methods  of  procedure  of  legislative  bodies,  and  the  prepara- 
tion of  the  subject  matter  and  form  of  bills.  The  legisla- 
ture is  in  session  from  January  to  June,  in  the  odd-num- 
bered years.  Throughout  the  year;  Tu.,  Th.,  n.  Mr.  LLOYD 
JONES,  Mr.  MCCARTHY. 

28.  Comparative  Study  of  Constitution  Making.    Mr.  LOWRIE. 

29.  Teachers'  Course.    Methods  of  teaching  government  in  sec- 

ondary schools.  Second  semester;  Th.,  4  to  6.  Mr.  Mc- 
BAIN. 

30.  Judicial  Administration.     A  study  of  the  organization,  juris- 

diction and  actual  operations  of  the  courts,  with  an  inquiry 
into  their  defects  in  the  administration  of  justice.  First 
semester;  Tu.,  Th.,  2  130.  Mr.  HALL. 

31.  Latin- American  Political  Institutions.     A  comparative  study 

of  the  constitutional  and  administrative  systems  of  the 
Latin- American  Republics.  First  semester;  M.,  W.,  F.,  10. 
Mr.  REINSCH. 

32.  Current  Political  Topics.     Study  of  current  political  problems, 

with  training  in  the  discriminating  use  of  sources  and  in 
effective  literary  presentation.  A  training  course  designed 
for  students  preparing  for  journalism.  Throughout  the 
year;  Tu.,  Th.,  10.  Mr.  BAILEY,  Mr.  CURTIS. 

33.  Practical  Bill  Drafting.     A  study  of  the  technique  of  bill 

drafting,  with  practice  in  drafting  actual  measures.  Open 
to  senior  and  graduate  students.  Second  semester;  M.,  F.,  7. 
Mr.  MCCARTHY,  Mr.  LLOYD  JONES. 

34.  Rural  Government.    A  study  of  the  development  and  present 


THE   LAW   AND   ECONOMIC   PROGRESS  255 

condition  of  county,  township,  and  village  government. 
First  semester;  M.,  W.,  F.,  n.  Mr.  BAILEY. 

35.  Conservation  of  Natural  Resources.    A  study  of  the  prob- 

lems of  conservation  and  reclamation  in  the  United  States. 
Second  semester;  Tu.,  Th.}  8.  Mr.  BAILEY. 

36.  American   Diplomacy.    A  study  of  the  principal   contem- 

porary problems  of  the  United  States  in  foreign  affairs ;  the 
participation  of  the  United  States  in  the  development  of 
International  Law ;  the  organization  of  the  diplomatic  ser- 
vice ;  the  product  of  diplomatic  action.  (Given  1910-1911 
and  alternate  years.)  Mr.  REINSCH. 

37.  Contemporary  International  Politics  and  Diplomatic  Prob- 

lems. A  study  of  the  present  grouping  of  the  powers  and 
their  mutual  relations.  First  semester;  W.}  M.y  F.,  n. 
(Given  1911-1912  and  alternate  years.)  Mr.  REINSCH. 
42.  Public  Utilities.  A  comparison  of  public  regulation  and  pub- 
lic and  private  ownership  of  municipal  utilities  in  Ameri- 
can states  and  foreign  countries,  including  constitutional 
and  judicial  limitations,  delegation  of  legislative  power  to 
commissions,  physical  valuation,  reasonable  rates  and  ser- 
vice, organization  of  public  employees,  cost,  efficiency, 
social  and  political  results.  First  semester;  M.,  W.,  F.,  8. 
Mr.  COMMONS,  Mr.  DUDGEON. 

WISCONSIN  JUDGES 

It  has  been  said  previously  that  the  Wisconsin  legis- 
lature would  probably  not  apply  the  recall  to  judges. 
We  have  been  fortunate,  indeed,  to  have  on  our  bench 
men  who  have  taken  as  broad  a  view  of  constitutional 
law  as  any  court  in  this  country.  This  fact  is  well  known 


256  THE  WISCONSIN  IDEA 

throughout  the  country  and  need  not  be  dwelt  upon  here. 
Our  judges  are  elected  for  long  terms  on  a  non-partisan 
basis  and  if  the  recall  were  in  force  in  this  state  it  would 
be  impossible  to  recall  any  of  them.  In  striking  contrast 
to  the  New  York  workmen's  compensation  decision  are 
herewith  presented  excerpts  from  Judge  Winslow's  opin- 
ion in  the  Wisconsin  case.  For  its  boldness  as  well  as 
literary  merit,  it  stands  as  a  monument  of  its  kind  and 
a  living  rebuke  to  the  pettiness  and  chicanery  exhibited 
in  courts  like  those  of  Illinois  and  California. 

"  In  approaching  the  consideration  of  the  present  law  we  must 
bear  in  mind  the  well  established  principle  that  it  must  be  sustained 
unless  it  be  clear  beyond  reasonable  question  that  it  violates  some 
constitutional  limitation  or  prohibition. 

"  That  governments  founded  on  written  constitutions  which 
are  made  difficult  of  amendment  or  change  lose  much  in  flexibility 
and  adaptability  to  changed  conditions  there  can  be  no  doubt. 
Indeed,  that  may  be  said  to  be  one  purpose  of  the  written  constitu- 
tion. Doubtless  they  gain  enough  in  stability  and  freedom  from 
mere  whimsical  and  sudden  changes  to  more  than  make  up  for  the 
loss  in  flexibility,  but  the  loss  still  remains,  whether  for  good  or  ill. 
A  constitution  is  a  very  human  document,  and  must  embody  with 
greater  or  less  fidelity  the  spirit  of  the  time  of  its  adoption.  It  will 
be  framed  to  meet  the  problems  and  difficulties  which  face  the  men 
who  make  it  and  it  will  generally  crystallize  with  more  or  less  fidel- 
ity the  political,  social  and  economic  propositions  which  are  con- 
sidered irrefutable,  if  not  actually  inspired,  by  the  philosophers  and 
legislators  of  the  time ;  but  the  difficulty  is  that,  while  the  consti- 
tution is  fixed  or  very  hard  to  change,  the  conditions  and  problems 


THE   LAW  AND   ECONOMIC   PROGRESS  257 

surrounding  the  people,  as  well  as  their  ideals,  are  constantly 
changing.  The  political  or  philosophical  aphorism  of  one  genera- 
tion is  doubted  by  the  next,  and  entirely  discarded  by  the  third ; 
the  race  moves  forward  constantly  and  no  Canute  can  stay  its 
progress. 

"  Constitutional  commands  and  prohibitions,  either  distinctly 
laid  down  in  express  words  or  necessarily  implied  from  general 
words,  must  be  obeyed  and  implicitly  obeyed  so  long  as  they  remain 
unamended  or  unrepealed.  Any  other  course  on  the  part  of  either 
legislator  or  judge,  constitutes  violation  of  his  oath  of  office ;  but 
when  there  is  no  such  express  command  or  prohibition,  but  only 
general  language,  or  a  general  policy  drawn  from  the  four  corners 
of  the  instrument,  what  shall  be  said  about  this?  By  what  stand- 
ards is  this  general  language  or  general  policy  to  be  interpreted 
and  applied  to  present-day  people  and  conditions  ? 

"  When  an  eighteenth  century  constitution  forms  the  charter 
of  liberty  of  a  twentieth  century  government  must  its  general 
provisions  be  construed  and  interpreted  by  an  eighteenth  century 
mind  surrounded  by  eighteenth  century  conditions  and  ideals? 
Clearly  not.  This  were  to  command  the  race  to  halt  in  its  progress, 
to  stretch  the  state  upon  a  veritable  bed  of  Procrustes. 

"  Where  there  is  no  express  command  or  prohibition,  but  only 
general  language  or  policy  to  be  considered,  the  conditions  pre- 
vailing at  the  time  of  its  adoption  must  have  their  due  weight, 
but  the  changed  social,  economic  and  governmental  conditions  and 
ideals  of  the  time,  as  well  as  the  problems  which  the  changes 
have  produced,  must  also  logically  enter  into  the  consideration, 
and  become  influential  factors  hi  the  settlement  of  problems  of 
construction  and  interpretation. 

"  These  general  propositions  are  here  laid  down,  not  because 
they  are  considered  either  new  or  in  serious  controversy,  but 


258  THE   WISCONSIN  IDEA 

because  they  are  believed  to  be  peculiarly  applicable  to  a  case  like 
the  present,  where  a  law  which  is  framed  to  meet  new  economic 
conditions  and  difficulties  resulting  therefrom  is  attacked  princi- 
pally because  it  is  believed  to  offend  against  constitutional  guaran- 
tees or  prohibitions  couched  in  general  terms,  or  supposed  general 
policies  drawn  from  the  whole  body  of  the  instrument." 

Again :  — 

"  The  next  important  contention  is  that  the  law  is  unconstitu- 
tional because  it  vests  judicial  power  in  a  body  which  is  not  a  court 
and  is  not  composed  of  men  elected  by  the  people,  in  violation  of 
those  clauses  of  the  state  constitution  which  vest  the  judicial  power 
in  certain  courts  and  provide  for  the  election  of  judges  by  the 
people,  as  well  as  in  violation  of  the  constitutional  guarantees  of 
due  process  of  law.  It  was  suggested  at  the  argument  that  the 
Industrial  Commission  might  perhaps  be  held  to  be  a  court  of 
conciliation,  as  authorized  to  be  created  by  Section  16  of  Article 
VII  of  the  state  constitution,  but  we  do  not  find  it  necessary  to 
consider  or  decide  this  contention.  We  do  not  consider  the  In- 
dustrial Commission  a  court,  nor  do  we  construe  the  act  as  vesting 
in  the  Commission  judicial  powers  within  the  meaning  of  the  Con- 
stitution. It  is  an  administrative  body  or  arm  of  the  government 
which  in  the  course  of  its  administration  of  a  law  is  empowered  to 
ascertain  some  questions  of  fact  and  apply  the  existing  law  thereto, 
and  in  so  doing  acts  quasi- judiciaMy,  but  it  is  not  thereby  vested 
with  judicial  power  in  the  constitutional  sense. 

"  There  are  many  such  administrative  bodies  or  commissions, 
and  with  the  increasing  complexity  of  modern  government  they 
seem  likely  to  increase  rather  than  diminish.  Examples  may  be 
easily  thought  of,  —  town  boards,  boards  of  health,  boards  of  re- 
view, boards  of  equalization,  railroad  rate  commissions,  and  public 


THE  LAW  AND  ECONOMIC  PROGRESS       259 

utility  commissions  all  come  within  this  class.  They  perform  very 
important  duties  in  our  scheme  of  government,  but  they  are  not 
legislatures  or  courts.  The  legislative  branch  of  the  government 
by  statute  determines  the  rights,  duties,  and  liabilities  of  persons 
and  corporations  under  certain  conditions  of  fact,  and  varying  as 
the  facts  and  conditions  change.  Manifestly  the  legislature  cannot 
remain  in  session  and  pass  a  new  act  upon  every  change  of  condi- 
tions, but  it  may  and  does  commit  to  an  administrative  board  the 
duty  of  ascertaining  when  the  facts  exist  which  call  into  activity 
certain  provisions  of  the  law,  and  when  conditions  have  changed 
so  as  to  call  into  activity  other  provisions.  The  law  is  made  by 
the  legislature,  the  facts  upon  which  its  operation  is  dependent  are 
ascertained  by  the  administrative  board.  While  acting  within  the 
scope  of  its  duty,  or  its  jurisdiction,  as  it  is  sometimes  called,  such 
a  board  may  lawfully  be  endowed  with  very  broad  powers,  and  its 
conclusions  may  be  given  great  dignity  and  force,  so  that  courts 
may  not  reverse  them  unless  the  proof  be  clear  and  satisfactory 
that  they  are  wrong." 

Proceeding  on  an  entirely  different  theory  and  yet  set- 
ting forth  a  more  startling  recognition  of  new,  economic 
forces  in  legislation,  Judge  Marshall  chides  the  legislature 
on  the  fact  that  it  has  not  previously  subjected  to  the 
court  this  question  of  workmen's  compensation.  The 
judge  holds  that  the  constitution  must,  through  its  very 
nature,  contain  power  of  this  sort  and  practically  invites 
the  legislature  to  test  the  constitution  if  the  legislature 
has  a  law  which  is  made  in  accordance  with  economic 
industrial  right.  The  judge  evidently  believes  that  the 
constitution  was  made  to  include  a  body  of  rights  broad 


260  THE   WISCONSIN  IDEA 

enough  to  last  for  all  time  and  that  the  burden  of  proof 
is  on  the  judge  who  would  declare  unconstitutional  a 
law  within  the  broad  words  of  the  preamble  of  the  con- 
stitution. 

"  How  are  we  to  determine  when  the  purpose  of  a  law,  in  the 
field  of  police  power,  and  unaffected  by  any  express  prohibition, 
is  legitimate?  It  seems  the  answer  is  easy.  Look  first  to  the 
purpose  of  the  Constitution,  found  in  the  declaration,  '  Grateful 
to  Almighty  God  for  our  freedom,  in  order  to  secure  its  blessings, 
form  a  more  perfect  union,  insure  domestic  tranquillity  and  pro- 
mote the  general  welfare  '  we  '  do  establish  this  Constitution.* 
Then  to  the  central  thought  —  the  very  superstructure  —  upon 
which  the  whole  was  builded :  '  All  men  are  born  equally  free  and 
independent  and  have  certain  inherent  rights,  among  those  are 
life,  liberty,  and  the  pursuit  of  happiness.'  There  is  voiced  a  broad 
spirit,  covering  as  this  court  has,  in  effect,  many  times  said,  a  field 
as  limitless  as  are  human  needs.  The  language  was  not  used  for 
mere  rhetorical  ornamentation  or  effect,  but  to  suggest  the  per- 
missible scope  of  legislation  in  the  zone  of  general  welfare,  its  extent 
and  its  limitations.  .  .  . 

"  So  here,  as  it  seems,  the  initial  question  was  this :  Is  the  pur- 
pose of  the  law  legitimate,  within  the  broad  dominating  spirit 
mentioned  ?  The  answer  must  be  yes,  as  the  manifest  purpose  is 
to  promote  every  element  of  the  central  thought  of  the  Consti- 
tution. Anything  fairly  within  that  has  always  been  and  must, 
necessarily  always,  be  held  legitimate.  Keeping  in  mind  that  in 
the  selection  of  means  the  Legislature  has  a  very  broad  compre- 
hensive field  in  which  to  freely  make  a  choice,  the  next  question  is, 
Are  the  means  contemplated  reasonably  appropriate  to  the  end  to 
be  attained?  Not  are  they  the  best  means,  but  are  they  proper 


THE  LAW  AND  ECONOMIC  PROGRESS  261 

means,  in  that  they  are  not  within  any  express  prohibition  and 
tend  to  conserve  rather  than  to  destroy?  All  must  agree  in  the 
affirmative  on  that  in  harmony  with  the  best  thought  of  all  the 
more  civilized  nations  of  Europe.  The  difficulty  here  has  been, 
want  of  appreciation  of  the  great  economic  truth,  that  personal 
injury  losses  incident  to  industrial  pursuits,  as  certainly  as  wages, 
are  a  part  of  the  cost  of  production  of  those  things  essential  to  or 
proper  for  human  consumption,  and  the  more  direct  they  are  in- 
corporated therein,  the  less  the  enhancement  of  cost  and  the  better 
for  all." 

Again,  in  the  domain  of  procedure,  listen  to  the  wise 
words  of  Chief  Justice  Winslow  on  the  delay  of  justice :  — 

"  The  ancient  doctrine  that  the  accused  could  waive  nothing 
was  unquestionably  founded  upon  the  anxiety  of  the  courts  to  see 
that  no  innocent  man  should  be  convicted.  It  arose  in  those  days 
when  the  accused  could  not  testify  in  his  own  behalf,  was  not  fur- 
nished counsel,  and  was  punished,  if  convicted,  Jby  the  death  pen- 
alty or  some  other  grievous  punishment  out  of  all  proportion  to  the 
gravity  of  his  crime.  Under  such  circumstances  it  was  well,  per- 
haps, that  such  a  rule  should  exist,  and  well  that  every  technical 
requirement  should  be  insisted  on,  when  the  state  demanded  its 
meed  of  blood.  Such  a  course  raised  up  a  sort  of  barrier  which 
the  court  could  utilize  when  a  prosecution  was  successful  which 
ought  not  to  have  been  successful,  or  when  a  man  without  money, 
without  counsel,  without  ability  to  summon  witnesses,  and  not 
permitted  to  tell  his  own  story,  had  been  unjustly  convicted,  but 
yet  under  the  ordinary  principles  of  waiver,  as  applied  to  civil 
matters,  had  waived  every  defect  in  the  proceedings. 

"  Thanks  to  the  humane  policy  of  the  modern  criminal  law 
we  have  changed  all  these  conditions.  The  man  now  charged  with 


262  THE   WISCONSIN   IDEA 

crime  is  furnished  the  most  complete  opportunity  for  making  his 
defence.  He  may  testify  in  his  own  behalf ;  if  he  be  poor,  he  may 
have  counsel  furnished  him  by  the  state,  and  may  have  his  wit- 
nesses summoned  and  paid  for  by  the  state ;  not  infrequently  he 
is  thus  furnished  counsel  more  able  than  the  attorney  for  the  state. 
In  short,  the  modern  law  has  taken  as  great  pains  to  surround  the 
accused  person  with  the  means  to  effectively  make  his  defense  as 
the  ancient  law  took  pains  to  prevent  that  consummation.  The 
reasons  which  in  some  sense  justified  the  former  attitude  of  the 
courts  have  therefore  disappeared,  save  perhaps  in  capital  cases, 
and  the  question  is,  Shall  we  adhere  to  the  principle  based  upon 
conditions  no  longer  existing  ?  No  sound  reason  occurs  to  us  why 
a  person  accused  of  a  lesser  crime  or  misdemeanor,  who  comes  into 
court  with  his  attorney,  fully  advised  of  all  his  rights  and  furnished 
with  every  means  of  making  his  defense,  should  not  be  held  to 
waive  a  right  or  privilege  for  which  he  does  not  ask,  just  as  a  party 
to  a  civil  action  waives  such  a  right  by  not  asking  for  it. 

"  Surely  the  defendant  should  have  every  one  of  his  constitu- 
tional rights  and  privileges,  but  should  he  be  permitted  to  juggle 
with  them  ?  Should  he  be  silent  when  he  ought  to  ask  for  some 
minor  right  which  the  court  would  at  once  give  him,  and  then 
when  he  has  had  his  trial,  and  the  issue  has  gone  against  him, 
should  he  be  heard  to  say  there  is  error  because  he  was  not  given 
his  right?  Should  he  be  allowed  to  play  his  game  with  loaded 
dice  ?  Should  Justice  travel  with  leaden  heel  because  the  defend- 
ant has  secretly  stored  up  some  technical  error  not  affecting  the 
merits,  and  thus  secured  a  new  trial  because  forsooth  he  can  waive 
nothing  ?  We  think  not.  We  think  that  sound  reason,  good  sense, 
and  the  interests  of  the  public  demand  that  the  ancient  strict  rule, 
framed  originally  for  other  conditions,  be  laid  aside,  at  least  so  far 
as  all  prosecutions  for  offenses  less  than  capital  are  concerned.  We 


THE   LAW  AND   ECONOMIC  PROGRESS  263 

believe  it  has  been  laid  aside  in  fact  (save  for  the  single  exception 
that  trial  by  a  jury  of  twelve  cannot  be  waived  unless  authorized 
by  a  specific  law)  by  the  former  decisions  of  this  court. 

"  It  is  believed  that  this  court  has  uniformly  attempted  to  dis- 
regard mere  formal  errors  and  technical  objections,  not  affecting 
any  substantial  right,  and  to  adhere  to  the  spirit  of  the  law  which 
giveth  life  rather  than  to  the  letter  which  killeth.  It  may  not 
always  have  succeeded ;  it  is  intensely  human,  but  since  the  writer 
has  been  here  he  knows  that  the  attempt  has  been  honestly  made. 

"  In  this  line  the  court  is  glad  to  welcome  legislative  assistance 
and  approval.  By  ch.  192,  Laws  of  1909  (sec.  3072m,  Stats.), 
it  is  provided  that  no  judgment,  civil  or  criminal,  shall  be  set  aside 
or  new  trial  granted  for  any  error  in  admission  of  evidence,  direc- 
tion of  the  jury,  or  any  error  in  pleading  or  procedure,  unless  it 
shall  appear  that  the  error  complained  of  has  affected  the  substan- 
tial rights  of  the  party  complaining.  How  much  this  adds  to  the 
provisions  of  sec.  2829,  which  has  been  on  the  statute  books  since 
1858,  is  not  entirely  clear.  At  least  it  shows  the  legislative  intent 
to  specifically  apply  the  law  to  criminal  actions.  Its  terms  are 
clear,  and  will  unquestionably  assist  the  court  in  its  efforts  to  do 
substantial  justice  in  all  actions,  either  civil  or  criminal,  without 
regard  to  immaterial  errors  or  inconsequential  defects.  This 
court  will  loyally  stand  by  this  law,  and  will  earnestly  endeavor 
to  administer  it  so  as  to  do  equal  and  exact  justice  so  far  as  human 
effort  can  accomplish  that  end."  (Hack  v.  State,  141  Wis.  346, 
PP-  3SI-353-) 

Judge  Marshall,  who  for  many  years  has  withstood 
technicalities  and  delay  of  the  law  in  no  uncertain  terms, 
has  given  the  writer  permission  to  use  the  following  de- 
scription of  the  work  of  our  courts :  — 


264  THE   WISCONSIN   IDEA 

"  Is  there  not  some  danger  of  the  public  being  misled  by  the 
agitation  respecting  inefficiency  of  criminal  procedure  ?  It  should 
not  be  thought  because  of  apparent  failures  of  justice  in  a  case  now 
and  then,  and  apparently  unnecessary  delay  and  expense  in  dispos- 
ing of  criminal  cases  in  some  of  the  large  cities,  that  the  adminis- 
tration of  the  law  in  Wisconsin  can  be  judged  thereby.  In  this 
state,  persons  accused  of  crime  are,  as  a  rule,  promptly  tried,  and, 
doubtless,  are  convicted  when  they  ought  not  to  be,  quite  as  often 
as  they  are  acquitted  when  they  ought  not  to  be.  Criminal  cases 
are  removable  to  the  Supreme  Court  at  very  moderate  expense  and 
when  so  removed  are  generally  and  finally  disposed  of  in  from  two 
to  five  months.  Furthermore,  the  number  of  cases  so  removed 
are  very  few  as  compared  with  the  total  number  tried. 

"  It  will  greatly  surprise  some  persons  to  be  told,  as  the  fact 
is,  that  during  the  period  of  six  years  covered  by  the  last  twenty- 
two  volumes  of  Supreme  Court  reports,  there  have  been  no  less, 
probably,  than  four  thousand  trials  of  criminal  cases  in  this  state 
and  three  thousand  convictions,  while  only  one  hundred  and  one 
cases  were  removed  to  the  Supreme  Court,  or  about  two  and  one-half 
per  cent  of  the  number  tried  and  five  per  cent  of  the  number  of  con- 
victions. Moreover,  not  more  than  five  per  cent  of  the  total  of 
all  kinds  of  cases  taken  to  the  Supreme  Court  were  criminal  cases. 
Of  those  four  were  reversed,  or  one  and  one-third  per  cent  of  cases 
tried  resulting  in  convictions. 

"  The  foregoing  can  be  better  appreciated  by  considering  that 
removals  of  criminal  cases  to  the  Supreme  Court  have  averaged 
about  one  to  a  county  once  in  four  years,  and  reversals,  one  to  a 
county  once  in  ten  years. 

"  About  one-third  of  all  the  criminal  cases  removed  to  the  Su- 
preme Court  during  the  period  named,  were  from  Milwaukee 
county,  and  yet  the  yearly  number  from  there  has  been  but  about 


THE  LAW  AND  ECONOMIC  PROGRESS      26$ 

five.  Two-thirds  of  all  removals  were  from  Milwaukee  county 
and  five  other  circuit  jurisdictions,  leaving  only  about  thirty  cases 
from  eighteen  other  trial  jurisdictions,  including  county  and  mu- 
nicipal judges,  or  on  the  average  of  one  case  every  three  years. 
From  one  circuit  judge's  jurisdiction,  and  those  of  several  judges 
of  inferior  courts,  there  has  not  been  a  removal  qf  a  criminal  case 
to  the  Supreme  Court  during  the  six  years. 

"  A  careful  examination  of  the  opinions  of  the  Justices  will 
show  that,  there  were  many  affirmances  regardless  of  plain  errors, 
that  being  intended  to  be  the  course  where  it  did  not  appear  that, 
had  the  error  not  occurred,  the  result  might  probably  have  been 
otherwise.  While  it  may  be  that  a  reversal  occurred,  now  and 
then,  on  a  ground  which  some  would  regard  technical  or  inconse- 
quential, the  rule  has  been  otherwise,  and  as  to  exceptions,  if  there 
be  such,  they  occurred  from  an  honest  reasonable  difference  of 
opinion  as  to  the  effect  of  the  errors  on  the  result,  or  an  honest 
reasonable  belief  that  they  were  neither  technical  nor  inconse- 
quential. 

"  There  will  be  found  on  the  average,  a  fraction  less  than  two 
reversals  in  criminal  cases  in  each  of  the  last  twenty-two  volumes 
of  reports,  containing  a  little  less  than  one  hundred  cases  of  all 
kinds,  including  five  criminal  cases. 

"  In  reading  the  foregoing,  it  must  be  remembered  that  the 
result  on  appeal  in  each  case,  with  but  few  exceptions,  was  con- 
curred in  by  all.  So  the  proportion  of  opinions  in  cases  reversed, 
written  by  any  particular  Justice,  does  not  have  any  particular 
significance." 

If  these  great  judges  recognize  that  justice  must  be 
made  speedy,  that  ancient  form  must  give  way  to  modern, 
that  the  constitution  is  broad  enough  to  cover  all  injus- 


266  THE   WISCONSIN  IDEA 

tice  and  wrong,  is  it  not  about  time  that  our  law  schools 
are  awakening  to  the  situation?  The  recent  progress 
made  along  this  line  at  Harvard  under  Professor  Roscoe 
Pound,  and  at  Pennsylvania  under  Dean  Lewis,  and  the 
establishment  of  the  "  Bureau  of  legislative  drafting  " 
in  connection  with  Columbia  university  are  excellent 
signs  of  the  times.  The  establishment  of  a  legislative 
reference  bureau  as  part  of  the  work  of  Harvard  and  the 
establishment  of  numerous  municipal  reference  depart- 
ments in  various  universities  modelled  to  some  extent 
after  the  Wisconsin  bureau,  are  also  encouraging. 

But  we  are  in  the  midst  of  great  struggles  in  America ; 
the  power  of  the  courts  in  these  contests  must  be  well 
denned.  Good  men  die  and  public  opinion  cannot  often 
bear  evenly  and  justly  upon  judicial  bodies.  The  strug- 
gle for  new  forms  and  to  meet  new  conditions  is  Titanic 
—  witness  the  Standard  oil  and  the  tobacco  cases.  Even 
mightier  struggles  are  to  come,  if  the  readjustment  of 
economic  conditions  and  law  is  made  to  the  satisfaction 
of  the  people.  Says  the  great  German  jurist,  Dr. 
Rudolph  von  Ihering,  in  the  "  Struggle  for  Law  " :  - 

"This  struggle  reaches  its  highest  degree  of  intensity  when 
the  interests  in  question  have  assumed  the  form  of  vested  rights. 
Here  we  find  two  parties  opposed  each  to  the  other,  each  of  which 
takes  as  its  device  the  sacredness  of  the  law ;  the  one  that  of  the 
historical  law,  the  law  of  the  past ;  the  other  that  of  the  law  which 
is  ever  coming  into  existence,  ever  renewing  its  youth,  the  eternal, 


THE  LAW  AND  ECONOMIC  PROGRESS      267 

primordial  law  of  mankind.  A  case  of  conflict  of  the  idea  of  law 
with  itself  which,  for  the  individuals  who  have  staked  all  their 
strength  and  their  very  being  for  their  convictions  and  finally  suc- 
cumb to  the  supreme  decree  of  history,  has  in  it  something  that  is 
really  tragic.  All  the  great  achievements  which  the  history  of  the 
law  has  to  record  —  the  abolition  of  slavery,  of  serfdom,  the  free- 
dom of  landed  property,  of  industry,  of  conscience,  etc.,  all  have 
had  to  be  won,  in  the  first  instance,  in  this  manner  by  the  most 
violent  struggles,  which  often  lasted  for  centuries.  Not  unfre- 
quently  streams  of  blood,  and  everywhere  rights  trampled  under 
foot,  mark  the  way  which  the  law  has  travelled  during  such  con- 
flict. For  the  law  is  Saturn  devouring  his  own  children.  The  law 
can  renew  its  youth  only  by  breaking  with  its  own  past.  A  con- 
crete legal  right  or  principle  of  law,  which,  simply  because  it  has 
come  into  existence,  claims  an  unlimited  and  therefore  eternal 
existence,  is  a  child  lifting  its  arm  against  its  own  mother;  it 
despises  the  idea  of  the  law  when  it  appeals  to  that  idea ;  for  the 
idea  of  the  law  is  an  eternal  becoming ;  but  that  Which  Has  Be- 
come must  yield  to  the  new  Becoming,  since —  Alles  was  ent- 
steht, 

'  1st  werth  dass  es  zu  Grunde  geht.' " 

Let  us  suppose  that  the  Wisconsin  court  followed  the 
New  York  court.  Let  us  suppose  that  the  New  York 
courts  again  and  again  disregarded  the  will  of  the  people, 
that  they  overreached  themselves  and  bound  the  legis- 
lature hand  and  foot.  What  are  we  going  to  do  about 
it?  In  the  milder  method  of  usurpation  of  power  by 
decisions  the  courts  have  encroached  upon  the  field  of 
legislation  —  and  is  this  not  the  true  reason  for  the  dis- 


268  THE   WISCONSIN   IDEA 

content  with  the  courts  ?  When  this  is  true,  is  there  not 
another  legislative  body  above  and  beyond  that  elected 
by  the  people  ?  The  chief  legislative  problem  before  us 
in  many  states  —  the  problem  which  has  required  all  our 
best  energy  in  the  past  —  is  the  creation  of  fictions  which 
will  in  some  way  allow  the  acts  demanded  by  the  people  and 
acknowledged  to  be  necessary,  to  exist  on  our  statute 
books,  in  spite  of  the  limits  of  the  federal  and  state  con- 
stitutions as  interpreted  by  thousands  of  decisions.  It 
is  not  my  purpose  to  go  into  history.  It  is  generally 
understood  that  the  United  States  constitution  never 
gave  the  right  to  the  courts  to  declare  laws  unconstitu- 
tional, but  that  the  right  has  come  mainly  from  the  case 
of  Marbury  vs.  Madison,  1803.  However  wise  that  de- 
cision may  have  been  at  the  time,  the  assumption  of 
control  over  legislation  and  consequently  the  assumption 
of  legislative  power  by  our  courts,  must  now  be  regarded 
as  the  most  unfortunate  expansion  of  our  unwritten  con- 
stitution which  has  ever  taken<  place  in  this  country. 
The  field  of  the  legislature  has  been  gradually  narrowed 
and  more  and  more  responsibility  taken  from  it.  How 
often  we  have  seen  just  and  right  legislation  checked  or 
choked  by  an  array  of  decisions  which  seem  to  block  the 
way  at  every  step  !  How  often  the  powers  opposed  to  all 
progress  have  cited  these  with  mighty  dignity  until  the 
legislature,  benumbed  and  confused,  has  yielded  to  what 
seemed  to  be  an  insurmountable  mass  of  judge-made 


THE  LAW  AND  ECONOMIC  PROGRESS       269 

wisdom  !  The  constitution  has  become  discredited  in 
the  eyes  of  the  people ;  is  looked  upon  as  an  instrument 
to  stop  all  progress  toward  regulation  of  what  ought  to  be 
controlled,  and  yet  such  is  far  from  the  fact  in  many  cases. 
It  is  the  spurious  decisions  —  the  dead  weights  of  prece- 
dent— which  are  in  the  way,  not  the  constitution  itself. 
But  the  system  is  here ;  its  menace  is  always  present 
and  legislation  or  the  science  of  legislation  cannot  go  for- 
ward until  something  is  done  to  remedy  these  conditions. 
Something  must  be  done  for  the  safety  of  our  courts 
because  sooner  or  later  the  people  will  say,  "  If  you  legis- 
late as  well  as  interpret  —  if  you  are  a  legislative  body, 
we  cannot  allow  you  to  exist  unless  we  have  control  over 
you."  If  the  recall  of  judges  is  rampant  in  the  land  there 
is  a  reason  for  it,  and,  from  a  theoretical  standpoint,  a 
sound  one ;  it  simply  means  control  of  a  legislative  body. 
The  constitutional  initiative  means  the  same  thing.  If 
the  judges  have  rendered  decisions  which  tie  the  legis- 
lature and  the  people  hand  and  foot,  a  change  in  the  con- 
stitution, rising  from  the  people  and  eradicating  the  de- 
cisions which  obstruct  the  way,  can  be  effected  through 
this  new  device.  In  either  case,  the  fundamental  reason 
is  the  same ;  the  judges  are  usurping  legislative  functions, 
and  a  legislative  body  which  is  neither  elected  nor  recalled 
is  inconceivable  in  a  republic.  The  writer  is  not  sure  but 
that  a  recall  applied  to  a  judge  who  has  gone  into  the 
legislative  field  is  a  good  thing  and  may  be  made  prac- 


270  THE   WISCONSIN  IDEA 

tical.  If  our  government  is  a  government  of  checks  and 
balances  and  the  courts  may  declare  a  law  passed  by  a 
legislature  unconstitutional,  who  is  to  pass  upon  an  un- 
constitutional decision  of  the  judges  ?  Would  it  not  be 
a  good  device  in  New  York  to  have  on  the  ballot  at  the 
next  election  the  question,  Is  the  decision  of  the  court  of 
appeals  in  the  workmen's  compensation  case  constitu- 
tional ?  —  and  let  the  people  from  whom  this  constitu- 
tion sprung  have  as  much  interpretive  power  as  the 
judges  whom  they  elect  ?  Does  any  one  doubt  but  that 
the  people  of  New  York  would  sustain  that  law  over- 
whelmingly ?  If  so,  what  better  test  have  we  of  its  con- 
stitutionality ?  It  might  be  advantageous  to  have  some 
provision  so  that  in  case  the  decisions  of  a  judge  were 
overturned  several  times  by  popular  vote,  the  judge 
would  be  subject  to  recall  as  being  unable  to  interpret 
the  constitution.  The  writer  is  a  firm  believer  in  repre- 
sentative government  and  is  of  the  opinion  that  the  legis- 
lature will  never  reach  its  highest  dignity  and  respon- 
sibility until  some  device  is  used  to  hold  the  court  within 
its  proper  sphere. 

Think  of  the  confusion  that  is  now  arising  in  our  coun- 
try because  of  this  power  !  Ten,  yes,  even  twenty  years 
after  a  law  has  been  enacted,  after  property  rights  have 
grown  under  it,  suddenly  there  may  be  a  decision  de- 
claring that  law  unconstitutional.  Could  anything  be 
more  conducive  to  chaos?  What  has  been  said  above 


THE  LAW  AND   ECONOMIC   PROGRESS  271 

applies  with  double  force  to  the  federal  courts.  There  is 
no  way  of  changing  the  constitution  except  by  that 
supreme  legislative  body,  the  supreme  court  of  the 
United  States.  Would  it  not  be  better  to  change  the  fifth 
article  of  the  United  States  constitution  so  that  the 
constitution  could  be  modified  or  at  least  some  of  the 
decisions  which  have  been  made  relating  to  it  be  effaced  ? 
Could  not  such  an  alteration  be  brought  about  by  pro- 
viding, for  instance,  for  a  change  by  a  majority  of  con- 
gress and  a  majority  of  the  states  instead  of  a  system 
which  no  one  can  change  save  the  supreme  legislature, 
stimulated  by  raging  and  threatening  public  opinion? 
Would  it  not  be  better  for  the  safety  of  the  courts  in  the 
long  run  to  allow  this  little  leeway  ?  Meanwhile,  if,  by 
the  establishment  of  a  real  study  of  jurisprudence  in  our 
law  schools,  expert  help  and  the  collection  of  scientific 
data  for  our  legislators,  we  can  help  our  law-makers  to 
put  the  will  of  the  people  into  a  noble,  clear,  dignified 
form,  we  can  aid  greatly  to  a  solution  of  this  problem. 
If  the  people  show  that  they  desire  a  certain  piece  of 
legislation,  the  legislature,  whatever  may  be  the  accu- 
mulation of  decisions  to  be  surmounted,  should  not  hesi- 
tate to  pass  it  in  a  form  economically  and  technically 
correct  and  submit  it  to  our  courts  —  and  let  them  de- 
stroy it  at  their  peril !  Fortunate  circumstances  in  this 
state,  of  which  there  has  been  some  mention,  have  made 
it  possible  to  place  before  our  court  the  principal  statutes, 


272  THE   WISCONSIN  IDEA 

not  without  error  it  may  be  said,  but  always  in  fairly 
good  technical  shape.  The  thorough  study  of  the  eco- 
nomic conditions  made  by  our  legislators  before  those 
statutes  were  enacted,  and  the  patience  with  which  hear- 
ings have  been  held  and  testimony  taken,  have  had  their 
reward  in  the  harmony  between  the  courts  and  the  legis- 
lature so  long  observable  in  the  state.  It  is  good  for  the 
legislature,  and  for  the  courts  as  well,  to  have  the  care  and 
the  help  which  comes  from  some  machinery  at  the  hand 
of  the  legislator  to  help  him  to  carry  out  the  will  of  his 
constituents. 


CHAPTER  X 
CONCLUSION 

THE  legislation  discussed  thus  far  in  this  little  book 
has  been  selected  because  it  shows  most  clearly  the  fun- 
damentals of  the  Wisconsin  idea.  To  describe  all  the 
laws  which  have  been  passed,  their  significance,  enforcing 
devices  and  administrative  features  would  necessitate 
a  large  volume,  hence  only  the  general  trend  of  legisla- 
tion has  been  considered.  The  session  of  1911  was  per- 
haps the  most  remarkable  session  ever  held  in  any  state, 
not  only  in  the  humanitarian  spirit  of  the  laws  but  also 
in  the  daring  manner  in  which  great  questions  were 
handled.  The  work  was  carefully  done,  and  although 
a  part  of  it  was  fragmentary  in  its  nature,  so  much  so 
that  it  may  have  to  be  redrafted,  none  of  it  presents  any 
real  menace  to  business  or  prosperity.  The  conservative 
Wisconsin  legislator  is  very  careful  to  build  well  as  he 
advances,  and  there  is  no  great  resentment  against  any 
of  these  laws.  The  water  power  law  is  the  only  one  which 
has  been  declared  unconstitutional.  The  income  tax 
was  not  received  with  much  enthusiasm  at  first,  but  as 
the  people  have  come  to  understand  it,  this  feeling  has 
T  273 


274  THE   WISCONSIN   IDEA 

died  away.    The  other  laws  have  met  with  general  ap- 
proval. 

As  an  example  of  the  sort  of  legislation  of  the  session 
of  1911,  there  is  a  fairly  accurate  newspaper  account  in 
the  Milwaukee  Free  Press  of  July  6,  1911,  under  the 
heading,  "Constitutional  amendments."  Following  is  a 
digest  of  this  article. 

The  following  proposed  amendments  to  the  constitu- 
tion were  adopted  this  year :  — 

The  initiative,  referendum. 

Providing  that  the  salaries  of  members  of  the  legislature  shall 
be  $600  per  annum,  instead  of  $500  for  each  biennial  session. 

Permitting  cities  to  acquire  lands  for  park  purposes. 

Permitting  the  state  to  install  a  system  of  insurance  against 
sickness,  death,  accident  and  invalidity. 

Permitting  the  state  to  appropriate  for  internal  improvements 
—  "for  the  purpose  of  acquiring,  preserving  and  developing  the 
water  power  resources  and  forests  of  the  state  " ;  limiting  the 
appropriation  therefor  to  a  &  of  a  mill  tax  on  the  property  of  the 
state. 

Empowering  the  legislature  to  provide  for  the  recall  of  any 
public  elective  officer,  except  judges. 

Declaring  "  all  lanes,  mineral  rights,  water  powers  and  other 
natural  resources  of  natural  wealth  within  the  state  which  are  now 
or  may  thereafter  become  the  property  of  the  state,  shall  remain 
forever  the  property  of  the  state  and  shall  not  be  alienated  " ; 
permitting  the  state  to  lease  or  rent  such  resources ;  and  providing 
that  all  mineral  rights  hitherto  reserved  in  contracts,  deeds  or  in- 
struments conveying  real  estate  are  abolished  after  Jan.  i,  1920, 


CONCLUSION  275 

and  are  declared  to  inhere  to  the  state  except  where  they  have  been 
developed  in  full  or  in  part  prior  to  Jan.  i,  1920. 

The  following  constitutional  amendments  were  adopted 
at  the  1909  and  also  the  1911  session  and  will  be  sub- 
mitted to  the  people  at  the  general  election  in  1912 :  — 

Permitting  municipalities  to  acquire  land  within  or  outside 
their  limits,  for  park  or  other  public  purposes  and  to  plat  or  sell 
any  part  of  such  land  for  the  purpose  of  adding  to  a  fund  for  the 
maintenance  of  parks,  playgrounds,  etc. 

Permitting  the  state  legislature  to  remove  the  five  per  cent 
limit  upon  the  public  debt  of  any  city,  county,  town,  village  or 
school  district,  when  the  debt  is  incurred  for  the  purpose  of  pur- 
chasing and  improving  public  parks,  etc. 

The  following  under  the  heading  "  Public  health  and 
welfare,"  show  what  was  accomplished  in  this  line: 

Empowering  county  boards,  with  the  consent  of  the  state  board 
of  control,  to  erect  upon  grounds  of  county  insane  asylums,  hos- 
pitals for  the  care  of  chronic  insane  affected  by  pulmonary  tuber- 
culosis. —  Chapter  461. 

Authorizing  the  secretary  of  the  state  board  of  health  to  pro- 
vide biennially  for  a  state  conference  of  health  officers  and  health 
commissioners  of  cities  and  villages.  —  Chapter  465. 

Empowering  county  boards  of  supervisors  to  purchase  sites  and 
establish  quarters  for  the  treatment  of  persons  suffering  from 
tuberculosis  in  advanced  or  secondary  stages.  —  Chapter  457. 

Specifying  the  manner  in  which  the  state  shall  care  for  depend- 
ent, neglected,  and  delinquent  children.  —  Chapter  460. 

Making  pandering  a  felony  and  providing  a  penalty  therefor.  — 
Chapter  420. 


276  THE   WISCONSIN   IDEA 

Empowering  the  state  board  of  health  to  abate  nuisances  caused 
by  the  pollution  of  streams  and  public  water  supplies.  —  Chapter 
412. 

Making  it  unlawful  to  store  or  exhibit  fruits,  vegetables,  or 
other  food  products  on  any  sidewalk  or  outside  any  place  of  busi- 
ness, unless  covered  by  glass,  wood  or  metal  cases  and  providing 
a  penalty  therefor.  —  Chapter  379. 

Requiring  owners  or  occupants  of  public  or  quasi-public  insti- 
tutions to  provide  cuspidors  and  cleanse  and  disinfect  same  daily. 

—  Chapter  330. 

Making  it  unlawful  to  abuse,  neglect,  or  illtreat  any  person  con- 
fined in  a  police  station  or  any  other  place  of  confinement,  and 
fixing  a  penalty  therefor.  —  Chapter  375. 

Requiring  trained  nurses  to  register  with  the  state  board  of 
health.  —  Chapter  346. 

Making  it  unlawful  to  manufacture,  sell,  or  transport  adulter- 
ated or  misbranded  insecticides  or  fungicides.  —  Chapter  325. 

Prohibiting  the  manufacturing  and  sale  of  certain  kinds  of  fire- 
crackers and  fireworks.  —  Chapter  313. 

Making  it  unlawful  for  physicians  or  surgeons  to  prescribe  in- 
toxicating liquor  for  any  person,  when  unnecessary  for  the  health 
of  such  person,  and  providing  a  penalty  therefor.  —  Chapter  290. 

Empowering  common  councils  to  regulate  the  emission  of  dense 
smoke  into  the  open  air  within  the  corporate  limits  of  any  city, 
and  within  one  mile  therefrom.  Chapter  314. 

Making  it  unlawful  to  spit  or  expectorate  in  any  public  place. 

—  Chapter  407. 

Empowering  health  officers  to  take  precautions  against -the 
spread  of  dangerous  communicable  diseases  and  prescribing  the 
duties  of  principals  of  schools  and  parents,  where  such  diseases 
are  known  to  exist.  —  Chapter  44. 


CONCLUSION  277 

Making  it  a  misdemeanor  to  sell  or  have  in  possession,  canned 
goods  containing  any  artificial  coloring  matter  or  bleaching  com- 
pound and  fixing  the  penalty  therefor.  —  Chapter  46. 

Prescribing  the  manner  in  which  explosives  may  be  manufac- 
tured and  stored  within  the  state.  —  Chapter  223. 

Prescribing  the  duties  of  health  officers  in  determining  the  diag- 
nosis of  contagious  or  infectious  diseases.  —  Chapter  248. 

Extending  the  police  authority  of  agents  and  superintendents  of 
certain  humane  societies.  —  Chapter  258. 

Conservation  received  some  attention  also :  — 

Empowering  boards  of  supervisors  to  lease  swamp  lands  under 
certain  conditions,  and  conferring  the  same  powers  upon  the  state 
board  of  forestry  in  certain  sections  of  the  state.  —  Chapter  238. 

Making  it  unlawful  to  waste  or  maliciously  destroy  or  impair 
any  natural  resources  and  providing  a  penalty  therefor.  —  Chapter 

143- 

Making  it  unlawful  to  injure,  mutilate,  cut  down,  or  destroy 
any  shade  tree  on  any  street  or  highway  in  villages.  —  Chapter  459. 

Requiring  all  engines  operated  in,  through  or  near  forest,  or 
brush  land  to  be  equipped  with  screen  or  wire  netting  between 
March  i  and  December  i  to  protect  such  forest  or  brush  land  from 
fire.  —  Chapter  494. 

Appropriating  $50,000  a  year  for  five  years  for  purchase  of  lands 
for  reforestation.  —  Chapter  639. 

Labor  was  not  ignored  in  this  session  as  is  shown  by 
the  following  laws  :  — 

Prohibiting  the  employment  of  children  between  the  ages  of 
14  and  1 6  years  unless  there  is  first  obtained  from  the  commissioner 
of  labor,  state  factory  inspector  or  any  assistant  factory  inspector 


278  THE   WISCONSIN  IDEA 

or  from  a  judge  of  any  county,  municipal  or  juvenile  court  a  written 
permit.  —  Chapter  479. 

Requiring  safety  appliances  and  automatic  feeding  devices  on 
corn  shredders.  —  Chapter  466. 

Empowering  the  state  bureau  of  labor  and  industrial  statistics 
to  investigate  contracts  between  employers  and  employees  and 
making  an  appropriation  therefor.  —  Chapter  453. 

Increasing  the  scope  of  the  state  employment  office  located  at 
Milwaukee.  —  Chapter  419. 

Making  it  the  absolute  duty  of  an  employer  to  guard  or  protect 
machines  or  appliances  on  all  premises  used  for  manufacturing  pur- 
poses and  to  maintain  same  after  installation.  —  Chapter  396. 

Making  it  unlawful  to  employ  labor  by  false  representation  and 
providing  a  penalty  therefor.  —  Chapter  364. 

Requiring  owners  or  occupants  of  all  public  or  quasi-public  in- 
stitutions and  factories  to  keep  exit  doors  unlocked  during  working 
hours  and  requiring  all  such  exit  doors  to  swing  outward.  —  Chap- 
ter 378. 

Specifying  the  manner  in  which  indenture  and  apprenticeship 
contracts  may  be  made,  and  providing  a  penalty  for  non-com- 
pliance therewith.  —  Chapter  347. 

Requiring  safety  appliances  on  dangerous  machinery  and  sani- 
tary conditions  in  factories.  —  Chapter  470. 

Requiring  contractors  and  owners,  when  constructing  buildings 
in  cities,  to  take  proper  precautions  for  the  protection  of  workmen 
and  specifying  what  precautions  are  necessary.  —  Chapter  49. 

Requiring  owners  of  factories  and  manufacturing  establish- 
ments to  provide  proper  ventilation  for  same  and  prescribing  a 
penalty  for  non-compliance.  —  Chapter  170. 

Limiting  the  hours  of  labor  on  public  buildings  to  eight  hours 
per  day  and  fixing  a  penalty  for  non-compliance.  —  Chapter  171. 


CONCLUSION  279 

Limiting  the  hours  of  labor  of  women  to  ten  a  day  or  fifty-five 
a  week  (chapter  548) ;  and  of  children  under  16  years  of  age  to 
eight  a  day  and  forty-eight  a  week  (chapter  479). 

Insurance 

Among  important  insurance  legislation  enacted  were  bills  curing 
the  defect  in  the  law  relating  to  collecting  the  expenses  of  examina- 
tions so  as  to  permit  the  department  to  make  examinations  as  be- 
fore ;  permitting  a  division  of  commissions  between  agents  licensed 
to  transact  the  same  kind  of  insurance  though  but  one  is  licensed 
for  the  company  writing  the  insurance ;  authorizing  the  merger  or 
consolidation  of  fire  insurance  corporations  of  this  state  under  one 
or  both  of  the  old  charters ;  authorizing  the  writing  of  surplus  lines 
by  licensed  agents  upon  the  granting  of  an  additional  license  and 
the  making  of  reports  and  payments  of  taxes  secured  by  a  bond ; 
limiting  investments  in  securities  of  any  one  corporation  to  10  per 
cent  of  the  admitted  assets  of  the  insurance  company ;  providing 
that  no  insurance  company  may  hold  real  estate  except  a  home 
office  building  to  a  value  not  exceeding  one-fifth  of  its  admitted 
assets,  and  that  other  real  estate  acquired  on  mortgages  must  be 
disposed  of  within  five  years  unless  the  time  be  extended  by  the 
commissioner;  providing  that  town  mutuals  may  write  barns  or 
outbuildings  used  in  connection  with  detached  dwellings  in  villages 
and  cities,  and  not  used  for  trade  or  manufacture ;  providing  town 
mutuals  may  levy  an  assessment  at  any  time  for  carrying  on  the 
business  of  the  company ;  safeguarding  the  surplus  of  mutual  com- 
panies by  prohibiting  the  conversion  of  any  mutual  company  into 
a  stock  company  and  further  prohibiting  the  managing  officers  or 
other  members  from  receiving  in  dividends  or  on  dissolution  of  the 
company  more  than  the  premiums  paid  in  with  six  per  cent  inter- 
est; amending  the  law  to  make  clear  the  construction  before 


280  THE   WISCONSIN  IDEA 

adopted  by  the  department,  that  a  newly  organized  admitted  fra- 
ternal benefit  society  must,  in  addition  to  charging  rates  not  less 
than  the  fraternal  congress  table  of  mortality,  hold  assets  to  meet 
a  liability  for  the  reserve  on  all  its  outstanding  certificates  on  the 
same  or  a  higher  basis ;  prohibiting  the  issue  of  any  deferred  divi- 
dend certificate,  policy,  or  other  contract  by  a  fraternal  society. 

Another  enactment  is  a  rewriting  of  the  laws  regulating  fra- 
ternal societies,  including  the  features  of  the  Mobile  bill,  with  the 
exception  of  the  one  requiring  a  compulsory  increase  in  rates. 
Other  new  laws  are  as  follows :  requiring  that  the  policies  of  assess- 
ment life  companies,  other  than  fraternal,  be  valued  to  ascertain 
how  much  has  been  accumulated  toward  a  reserve  and  that  the 
amount  accumulated  be  carried  to  the  credit  of  the  individual 
members  and  a  statement  thereof  given  to  any  policy-holder; 
extending  the  anti-rebate  law  to  cover  all  forms  of  insurance; 
providing  for  liability  insurance  against  damage  to  property  by 
accident;  permitting  the  admission  of  mutual  companies  and 
inter-insurers ;  prohibiting  the  sale  of  any  insurance  stock  unless 
the  contract  contains  a  provision  informing  the  purchaser  of  the 
percentage  of  payment  made  by  the  subscriber  which  may  be  used 
for  promotion  and  organization  expenses,  etc.,  limiting  to  10  per 
cent  of  the  amount  paid  by  the  subscriber  the  promotion  and  or- 
ganization expenses,  and  for  an  investigation  of  fire  insurance  com- 
panies. 

Court  and  Legal  Procedure 

Creating  a  commission  of  three  members  to  be  appointed  by  the 
governor  and  to  be  styled  "  Commissioners  for  the  promotion  of 
uniformity  in  legislation  in  the  United  States,"  and  making  an 
appropriation  therefor.  —  Chapter  462. 

Permitting  a  mortgagor,  or  his  wife,  assignee  or  assignees  to 


CONCLUSION  28l 

redeem  property  sold  at  a  chattel  mortgage  sale  within  five  days 
after  such  sale.  —  Chapter  410. 

Authorizing  county  courts  to  appoint  guardians  for  incompe- 
tent persons,  such  guardians  to  have  authority  to  convey  real  es- 
t#te  belonging  to  said  incompetents.  —  Chapter  367. 

Permitting  the  amendment  of  pleadings  in  law  and  equity.  — 
Chapter  353. 

Relating  to  judicial  redress  for  plaintiff  on  demurrer  to  com- 
plaint. —  Chapter  354. 

Increasing  the  annual  salaries  of  justices  of  the  Supreme  Court 
from  $6000  to  $7500.  —  Chapter  508. 

Permitting  a  trial  by  jury  of  less  than  twelve  men  with  the  con- 
sent of  the  accused.  —  Chapter  348. 

Permitting  physicians  and  surgeons  to  testify  in  their  own  be- 
half, as  to  information  they  may  have  acquired  in  their  profes- 
sional capacity.  —  Chapter  322. 

Extending  the  scope  of  the  examination,  adverse  examinations 
of  witnesses  on  trial.  —  Chapter  291. 

Prohibiting  any  person  acting  as  attorney  or  counsel  in  a  case 
formerly  prosecuted  by  him  as  an  officer.  —  Chapter  304. 

Amending  section  3940  of  the  statutes,  relating  to  the  assign- 
ment of  estates  of  decedents.  —  Chapter  271. 

Providing  a  penalty  for  non-compliance  with  the  provisions  of 
the  discovery  statute.  —  Chapter  232. 

Fixing  the  penalty  for  the  destruction  of  property  by  means  of 
explosives  from  one  to  fifteen  years  in  the  penitentiary.  —  Chap- 
ter 286. 

Extending  the  jurisdiction  of  the  municipal  court  having  con- 
current criminal  jurisdiction  with  circuit  courts  in  counties  having 
a  population  of  250,000  or  more  to  take  charge  of  prisoners  placed 
on  probation.  —  Chapter  269. 


282  THE   WISCONSIN  IDEA 

Extending  the  scope  of  the  discovery  statute  to  include  the  tak- 
ing of  depositions  of  non-resident  plaintiffs  or  defendants  in  any 
county  in  the  state.  —  Chapter  231. 

Prohibiting  the  examining  magistrates  from  acting  as  counsel 
or  attorney  in  any  action  which  shall  previously  have  been  deter- 
mined before  him  as  such  examining  magistrate.  —  Chapter 
144. 

Empowering  judges  of  courts  of  record  to  hold  in  contempt, 
on  proper  proceedings,  any  person  who  refuses  to  testify  before  a. 
board  of  review  after  proper  summons.  —  Chapter  140. 

Providing  a  penalty  for  having  in  possession  burglarious  explo- 
sives or  devices.  —  Chapter  88. 

Relating  to  the  dissolution  of  corporations  and  evidence  of  title 
to  corporate  property.  —  Chapter  65. 

Limiting  the  number  of  justices  of  the  peace  in  each  town  to 
two  and  specifying  the  manner  and  time  of  election.  —  Chapter  72. 

Relating  to  the  admissibility  of  testimony  of  deceased  witnesses 
or  witness  absent  from  state  in  any  retrial  or  proceeding.  —  Chap- 
ter 65. 

Legalizing  and  validating  deeds  and  other  written  instruments 
acknowledged  before  a  register  of  deeds  to  the  same  extent  as  if 
they  had  been  acknowledged  before  a  person  authorized  to  take 
such  acknowledgment.  —  Chapter  24. 

Giving  justices  of  the  peace  exclusive  jurisdiction  in  all  cases 
arising  under  ordinances  and  by-laws  of  villages.  —  Chapter  23. 

Making  the  maximum  penalty  for  burglary  in  the  night  time, 
ten  years.  —  Chapter  64. 

Providing  for  drawing  of  jurors  in  counties  having  a  population 
of  150,000  and  giving  circuit  judges  certain  powers  therefor. — 
Chapter  219. 

Empowering  courts  of  record  having  criminal  jurisdiction  to 


CONCLUSION  283 

employ  counsel  for  indigent  persons  and  fixing  compensation 
therefor.  — Chapter  218. 

Making  county  in  which  commitment  is  made  liable  for  sup- 
port of  persons  committed  to  jail  for  failure  or  refusal  to  comply 
with  court  order  respecting  payment  of  alimony.  —  Chapter  153. 

Providing  for  the  parole  of  minors  convicted  of  misdemeanors 
and  felonies.  —  Chapter  131. 

Denning  burglary  with  explosives  and  fixing  a  penalty  there- 
for. —  Chapter  89. 

Providing  for  writ  of  error  for  state  in  criminal  actions  under 
certain  conditions.  —  Chapter  187. 

Relating  to  comity  between  states  and  foreign  decrees  of  di- 
vorce. —  Chapter  174. 

Empowering  clerks  of  circuit  courts  having  1000  or  more  ac- 
tions on  the  term  calendar  to  arrange  such  actions  according  to 
date  or  riling  of  complaint,  petition,  or  other  pleadings  necessary 
to  commence  the  action,  and  making  the  serial  record  number  of 
every  action  its  calendar  number.  —  Chapter  212. 

Requiring  clerks  of  courts  of  record  in  the  state  to  turn  over  to 
county  treasurer  all  unclaimed  moneys,  securities  or  funds  for 
which  no  order  has  been  made  during  four  years  and  requiring 
county  treasurer  to  turn  all  such  moneys,  securities,  and  funds  into 
county  treasury  when  no  legal  claim  is  made  for  same  after  due 
publication  providing  for  waiver  of  all  actions  for  same  after  pro- 
visions of  law  have  been  complied  with.  —  Chapter  209. 

Making  wages  due  workingmen,  clerks,  or  servants,  which  have 
been  earned  within  three  months  before  date  of  death  of  testator 
or  intestate,  not  to  exceed  $300  to  each  claimant,  valid  claims 
against  estate  of  deceased.  —  Chapter  17. 

Dividing  the  civil  court  of  Milwaukee  county  into  branches  and 
providing  for  the  numbering  of  same.  —  Chapter  9. 


284  THE   WISCONSIN  IDEA 

Cities 

Empowering  common  councils  to  legalize  bonds  issued  or  sold 
by  any  municipality  for  the  purpose  of  purchasing  or  constructing 
an  electric  lighting  plant,  which  bonds  have  been  declared  illegal 
subsequent  to  their  issuances.  —  Chapter  75. 

Authorizing  cities  to  accept  their  own  bonds  or  mortgage  cer- 
tificates from  depositors  as  collateral  security  and  to  provide  for 
their  cancellation  upon  default  of  the  depository.  —  Chapter  130. 

Empowering  common  councils  of  cities  of  the  first  class  to  ex- 
tend the  time  for  payment  of  city  taxes  for  a  period  of  six  months. 
—  Chapter  273. 

Empowering  common  councils  to  change  the  license  fee  charged 
for  interurban  franchises  not  oftener  than  once  in  five  years.  — 
Chapter  274. 

Empowering  common  councils  to  levy  a  tax,  not  to  exceed  seven- 
teen one-thousandths  of  a  mill  upon  each  dollar  of  the  assessed 
value  of  the  taxable  property  of  cities  for  the  city  civil  service 
fund.  —  Chapter  95. 

Empowering  villages  and  cities,  specially  incorporated,  to 
condemn  land  for  the  construction  of  sewage  disposal  plants  and 
mains  incident  thereto,  within  or  without  the  limits  of  the  village 
or  city.  —  Chapter  279. 

Creating  an  art  commission  for  cities  of  the  first  class  and  speci- 
fying the  membership  thereof.  —  Chapter  318. 

Providing  a  method  of  determining  the  necessity  of  taking  lands 
for  public  purposes,  in  cities  operating  under  a  special  charter.  — 
Chapter  332. 

Permitting  cities  of  the  second,  third  and  fourth  classes  to  or- 
ganize under  the  commission  form  of  government  and  specifying  the 
manner  in  which  such  organization  shall  be  affected.  —  Chapter  387. 


CONCLUSION  285 

Empowering  county  boards  to  fix  compensation  of  the  register 
of  deeds  and  to  change  the  same  from  a  fee  to  salary  system.  — 
Chapter  400. 

Permitting  cities  of  third  and  fourth  class  through  the  mayor, 
clerk  and  common  council,  to  execute  trust  deeds  or  mortgage, 
to  secure  the  payment  of  bonds  heretofore  or  hereafter  issued  by 
any  city  for  the  purchase  of  electric  light  or  water  works  plants 
and  the  appurtenances  of  such  plants.  —  Chapter  411. 

Creating  the  office  of  city  forester  in  cities  of  the  first  class  and 
prescribing  his  powers  and  duties.  —  Chapter  408. 

Conferring  powers  of  self  government  on  cities  and  providing 
for  charter  conventions.  —  Chapter  476. 

Empowering  any  city  to  create  by  ordinance  of  its  common 
council,  a  board  of  public  land  commissioners  of  five  members,  ap- 
pointed with  powers  of  converting  streets  and  highways  desig- 
nated by  the  common  council  of  such  city  into  parkways  or  boule- 
vards. —  Chapter  486. 

Authorizing  common  councils  of  cities  of  the  first  class  to  license 
and  regulate  persons,  firms  and  corporations  engaged  in  the  install- 
ing, erecting,  constructing,  or  altering  of  any  electrical  work 
in  any  building,  or  part  of  building,  in  said  cities.  —  Chapter 
482. 

Permitting  tax  levy  of  finfa  of  a  mill  for  library  in  the  city  of 
Milwaukee.  —  Chapter  109. 

Granting  certain  submerged  lands  along  lake  shore  of  Mil- 
waukee for  park  and  boulevard  purposes.  —  Chapter  198. 

Permitting  all  cities  to  erect  public  lavatories  and  to  maintain 
them  by  letting  out  privileges  to  news  venders,  etc.,  or  out  of  the 
general  city  fund.  —  Chapter  19. 

Permitting  cities  of  first  and  second  class  to  fix  rates  of  wharf- 
age. —  Chapter  42. 


286  THE   WISCONSIN   IDEA 

Requiring  cities  to  sprinkle  streets  when  abutting  property 
owners'  petition  for  the  same.  —  Chapter  45. 

Prohibiting  the  establishment  of  a  street  in  Milwaukee  county 
without  securing  approval  of  county  board.  —  Chapter  86. 

Permitting  tax  levy  of  irHnfo  of  a  mill  for  the  public  museum 
in  Milwaukee.  —  Chapter  93. 

Permitting  special  tax  levy  of  ^  of  a  mill  for  historical 
museums  in  cities  of  first  and  second  classes.  —  Chapter  94. 

Permitting  special  tax  levy  of  TVfr  of  a  mill  for  parks  and 
boulevards  in  Milwaukee.  —  Chapter  98. 

Permitting  special  tax  levy  of  xMff  of  a  mill  for  auditoriums 
and  music  halls  in  Milwaukee.  —  Chapter  99. 

These  laws  are  in  general  fairly  characteristic  of  the 
kind  passed  by  a  modern  state  legislature.  Some  are 
trivial,  but  on  the  whole  a  certain  spirit  of  advancement 
is  evident  all  through  them.  They  are  but  a  small  part 
of  the  legislation  passed  at  this  session.  Home  rule  for 
cities,  the  commission  form  of  government  and  many 
other  improvements  were  provided  for.  The  educational 
legislation  mentioned  previously  seems  to  be  the  begin- 
ning of  a  general  overhauling  of  the  whole  educational 
system.  Railroads  and  public  utilities  also  came  in  for 
their  share. 

Ten  years  ago  what  an  uproar  capital  would  have 
caused,  had  such  an  array  of  bills  been  proposed  to  any 
legislature,  yet  no  capital  has  been  driven  out  of  this 
state— in  fact  everything  is  advancing  with  great  strides. 
It  is  rapidly  becoming  a  manufacturing  state.  It  ranks 


CONCLUSION  287 

seventh  in  the  table  showing  the  amount  of  corporation 
taxes  collected  by  the  United  States  government  from 
the  various  states. 

It  is  an  easy  thing  to  say  that  a  state  is  prosperous, 
but  when  hard-headed  men  in  Wall  Street  admit  that  a 
certain  state,  in  which  a  political  agitation  to  which  they 
are  opposed  has  gone  on  for  many  years,  is  prosperous 
and  when  the  bonding  houses  concede  that  all  the  stocks 
and  bonds  of  great  financial  interests  and  public  utilities 
of  all  kinds  are  upon  a  sound  basis  in  that  state,  surely 
there  must  t>e  some  evidence  of  it.  If  we  find  that  fail- 
ures in  the  United  States  have  increased  about  33  J  per 
cent  in  ten  years  and  have  decreased  in  Wisconsin  some 
10.8  per  cent,  that  speaks  well  for  a  state  as  advanced 
in  radical  legislation  as  Wisconsin.  If  we  find  that^the 
cost  of  material  used  in  manufacture  has  increased  52  per 
cent  in  four  years  in  a  state  having  no  coal,  the  agitation 
is  not  driving  capital  out  of  the  state.  If  we  find  that 
there  have  been  absolutely  no  failures  of  state  banks  in 
that  state  for  over  ten  years  and  but  three  national 
banks  went  into  receivership  because  of  embezzlement 
during  that  period,  certainly  it  speaks  well  not  only  for 
the  prosperity  of  the  state,  but  for  the  safeguarding  of  the 
money  invested.  The  clearing  house  exchanges  have  in- 
creased in  the  United  States  about  100  per  cent  in  ten 
years  and  in  Milwaukee  117  per  cent  in  that  time.  New 
construction  in  gas  utilities  has  increased  22  per  cent 


288  THE   WISCONSIN  IDEA 

in  1910  over  that  of  1909 ;  in  telephones,  14  per  cent  in 
the  same  time ;  in  electric  utilities,  145  per  cent ;  in  water 
utilities,  24  per  cent ;  the  railroads'  gross  earnings  have 
increased  21.01  per  cent  from  1905  to  1909,  while  all  the 
railroads  in  America  have  increased  but  16.15  Per  cent; 
the  railroad  mileage  of  Wisconsin  has  increased  12  per 
cent  in  the  same  time;  the  total  value  of  railroads  in 
Wisconsin  in  six  years  has  increased  about  $96,000,000 ; 
the  value  of  all  general  property  in  the  state  has  about 
doubled  in  six  years.  Considering  all  these  facts,  we 
can  surely  say  that  the  legislation  —  admittedly  some  of 
it  experimental  —  which  has  been  discussed  in  this  book 
is  not  of  such  a  nature  as  to  seriously  hurt  capital.  The 
underlying  truth  is,  that  there  has  been  substituted 
governmental  regulation  for  the  darkness  of  private  cor- 
poration accounts.  We  all  know  that  however  good 
security  private  companies  may  offer,  United  States 
bonds  at  a  lower  rate  are  more  certain  and  safer.  This  is 
simply  because  we  are  willing  to  pay  for  security.  The 
public  bookkeeping  in  Wisconsin  whatever  it  does,  in- 
sures security.  The  recent  prosperity  of  the  agricultural 
and  dairy  interests  in  Wisconsin  (the  result  of  the  edu- 
cational campaign)  can  scarcely  be  realized.  Wisconsin 
is  now  the  second  dairy  state  in  the  union ;  the  yield  per 
acre  of  grain  during  the  last  year  has  been  greater  in 
this  state  than  in  any  other  state.  For  ten  years  it  has 
been  the  great  flax  producing  state  in  the  country ;  and 


CONCLUSION  289 

excluding  the  states  which  require  irrigation,  the  greatest 
in  barley,  oats  and  spring  wheat;  it  is  second  in  the 
amount  of  potatoes  produced ;  the  number  of  cows  has 
increased  in  ten  years  some  47.7  per  cent ;  in  butter  pro- 
duction, it  has  increased  70.4  per  cent  and  in  cheese  pro- 
duction, 87.7  per  cent.  Surely  the  great  investment 
which  Wisconsin  has  made  in  her  educational  institutions 
has  returned  its  original  investment  many  times  over  in 
hard  dollars  and  cents. 

Granting  that  this  prosperity  may  not  be  the  result 
of  this  legislation,  it  may  be  good  evidence  that  the  Wis- 
consin legislature  has  proceeded  with  great  caution  and 
made  its  laws  only  after  the  most  careful  scrutiny  of  the 
delicate  machinery  of  industry.  It  may  be  said  that 
these  conditions  might  have  existed  if  none  of  these  laws 
had  been  passed  but  the  fact  that  prosperity  has  increased 
at  a  rate  as  great  as,  if  not  greater  than,  any  state  in  the 
country,  is  evidence  that  if  laws  are  made  carefully  and 
are  made  to  fit  into  the  harmony  of  industrial  conditions, 
greater  advances  can  be  made  than  by  following  the 
wild  shouts  of  reformers  who  would  destroy  without  con- 
structing. 

The  state  has  not  suffered  from  heavy  taxation  either 
in  the  accomplishment  of  all  these  things.  Wisconsin 
has  no  state  debt  (save  money  borrowed  from  its  own 
school  fund)  and  yet  is  building  a  $6,000,000  capitol 
building  out  of  current  taxation  funds  without  debt. 


2  go  THE   WISCONSIN   IDEA 

Heavy  investments  for  the  future  which,  according  to  all 
systems  of  finance  and  from  every  motive  of  justice, 
should  be  carried  by  a  state  debt,  have  been  provided 
for  by  current  taxation.  As  the  direct  state  tax  was 
remitted  for  six  years  there  was  no  direct  state  tax  during 
that  time,  the  corporations  paid  it  all  and  the  people  have 
been  spoiled.  Although  now  the  state  tax  rate  is  rela- 
tively low  in  comparison  with  some  of  the  surrounding 
states,  there  has  been  some  grumbling  as  a  result  of 
this  remittance  of  a  few  years  ago  when  no  state  tax 
whatever  was  collected. 

The  fact  is  that  the  greater  part  of  this  increase  of  the 
cost  of  government  has  been  caused  by  state  aid  to  edu- 
cational enterprises,  in  many  cases  chiefly  of  local  im- 
portance and  by  the  building  of  roads  and  developments 
by  which  the  locality  itself  directly  benefits.  It  is  gradu- 
ally being  understood  by  the  Wisconsin  people  that  a 
large  investment  has  been  made  and  as  time  goes  on,  a 
more  general  satisfaction  is  evident  in  regard  to  the  pay- 
ment of  taxes.  The  people  of  this  state  demand  efficiency 
in  government  and  once  convinced  of  its  existence  they 
are  willingly  taxed  for  it,  despite  the  demagogue  who 
so  often  makes  this  his  only  shibboleth. 

There  are  countries  still  where  taxes  are  low ;  Dah- 
omey is  one  of  them.  State  activity  means  investment 
and  all  the  advanced  states  of  the  world  make  heavy 
investments.  Wisconsin  taxes  are  very  low  in  the  opin- 


CONCLUSION  291 

ion  of  the  writer,  and  even  a  heavier  investment  should 
be  made  to-day  either  by  bonding  the  state  or  otherwise, 
in  the  development  of  roads,  and  forests  and  in  the  in- 
dustrial and  agricultural  education  of  the  people.  It 
would  certainly  be  worth  the  investment  a  hundredfold 
provided  always  that  efficient  machinery  prevents  waste. 

If  what  has  been  written  has  any  element  of  truth  in  it, 
if  good  legislation  and  prosperity  can  and  do  go  hand  in 
hand,  the  result  is  a  monument  to  the  painstaking  and 
toiling  way  in  which  the  Wisconsin  legislature  has  gone 
about  its  task.  If  the  Wisconsin  legislation  has  some 
elements  of  solidarity  in  it,  no  little  of  its  success  may  be 
due  to  the  fact  that  the  cautious,  careful  German  and 
Norwegian  have  refused  to  be  domineered  by  every  long- 
haired reformer  who  prances  into  the  arena,  asking  all 
to  "  put  on  the  whole  armor  of  God."  This  type  of 
reformer  has  been  practically  unknown  in  our  legislative 
bodies  and,  indeed,  it  is  only  recently  that  he  has  made 
his  appearance  at  all  —  then  but  to  receive  a  very  chilly 
welcome.  In  the  words  of  the  current  slang  phrase,  every 
Wisconsin  legislator  "comes  from  Missouri"  and  you 
have  to  "show  him." 

Real  reformers  have  yet  to  learn  that  they  can  pro- 
gress much  further  if  they  really  build  well  as  they  pro- 
ceed. Many  a  good  business  man  would  welcome  certain 
kinds  of  legislation  if  he  were  convinced  that  it  could  be 
made  effective  without  great  distortion  of  industrial  con- 


2Q2  THE   WISCONSIN   IDEA 

ditions.  It  is  to  the  advantage  both  of  the  reformer  and 
the  business  man  that  there  should  be  some  attempt  to 
improve  our  law-making  process.  A  governor  of  New 
York  once  told  how  his  predecessor  managed  the  reform- 
ers ;  he  agreed  with  every  one  and  suggested  that  the 
reformers  put  their  ideas  in  the  form  of  bills  which  he 
would  support.  Four  out  of  five  of  the  reformers  never 
returned,  while  the  fifth  one  reappeared  with  a  bill  so 
crude  in  form  that  the  governor  could  easily  point  out 
sections  which  he  could  not  support  because  of  their  un- 
constitutionality  or  lack  of  administrative  devices.  In 
Wisconsin,  the  governor  could  not  use  that  scheme. 
The  chances  are  that  if  a  man  really  had  a  feasible  idea 
which  would  be  for  the  general  welfare  of  the  state,  he 
would  have  a  hearing  before  the  legislature  and  his  plan 
would  be  modified  in  such  a  manner  that  the  governor 
would  have  a  much  harder  task  to  criticise  it  or  lightly 
dispose  of  it. 

The  board  of  public  affairs  of  which  there  has  been 
casual  mention  in  previous  chapters,  is  a  temporary  board 
or  commission,  composed  of  some  of  the  ablest  men  in 
the  state.  It  deserves  some  comment  at  this  point 
because  of  its  relation  to  future  legislation.  It  has  two 
specific  duties  to  perform;  to  increase  the  efficiency  of 
the  administration  of  the  state  by  applying  business 
methods  throughout  and  to  investigate  the  cost  of  living, 
the  development  of  the  state,  the  immigration  question, 


CONCLUSION  293 

cooperation  and  credit  conditions  and,  in  general,  to  de- 
termine whether  a  state  plan  for  betterment  can  be 
evolved  which  will  make  Wisconsin  a  better  state  in 
which  to  live. 

Now  there  isn't  a  shrewd,  careful  man  who  is  not 
afraid  of  all  this  when  he  hears  of  it ;  such  plans,  from 
John  Locke  to  the  present  time,  have  nearly  always 
failed.  The  report  of  the  "Recess  committee  on  Irish 
affairs"  under  the  direction  of  Sir  Horace  Plunkett  is  a 
brilliant  exception.  Recognizing  these  facts, (the  board 
is  carefully  proceeding  in  its  work  with  the  idea  of 
recommending  improvements  to  the  legislature  which 
will  lay  strong  foundations  for  the  future. 

Wisconsin  has  ten  million  acres  of  unoccupied  land.  If 
Australia  and  New  Zealand  have  dealt  with  a  problem  of 
this  kind,  why  cannot  Wisconsin  do  so  ?  If  these  lands  are 
good  for  agricultural  purposes  but  require  thirty  dollars 
an  acre  for  development,  why  cannot  a  scheme  be  origi- 
nated so  that  the  actual  settler  may  have  the  advantage 
of  some  kind  of  credit,  in  order  to  clear  his  land  and  use 
his  capital  for  the  greatest  benefit?  Australia  has 
bought  up  or  condemned  great  tracts  of  land  and  then 
leased  them  for  999  years  to  actual  settlers ;  the  settler 
may  use  his  capital  for  cattle,  machinery  and  barns  and 
by  paying  a  small  lease  yearly  to  the  state,  improve 
these  lands.  Practically  the  same  principle  is  being 
applied  in  the  arid  regions  of  the  West  by  our  federal 


2Q4  THE   WISCONSIN   IDEA 

government ;  is  there  any  great  reason  why  these  prin- 
ciples' may  not  be  applied  here?  If  lands  cannot  be 
developed  because  of  lack  of  water  and  the  government 
advances  money  to  supply  that  deficiency,  wherein  lies 
the  difference  between  that  aid  and  the  clearing  of  wild 
lands  of  stumps  subsidized  by  the  government?'  The 
only  thing  which  lies  in  the' way  in  either  case  is  capital 
and  long  time  credit.  All  history  shows  that  land 
monopoly  combined  with  a  renter  class,  brings  about 
the  worst  possible  situation  for  a  country.  In  order  to 
prevent  the  gradual  increase  of  the  renter  class,  can  we 
not  introduce  some  long  time  credit  arrangement  similar 
to  that  recently  introduced  into  Ireland,  by  which  the 
government  allows  the  purchaser  to  pay  for  land  on  a 
long  time  basis? 

Is  all  of  this  socialism  ?  Quite  the  opposite ;  it  strives 
to  give  the  individual  a  better  opportunity  to  possess 
property  —  the  very  antithesis  of  socialism.  Reduction 
of  the  cost  of  living  and  cooperative  schemes  of  one  sort 
or  another  are  also  to  be  investigated  by  this  commission. 
With  the  splendid  examples  of  the  work  of  foreign  coun- 
tries along  this  line  —  the  great  Raffeisen  system  of 
cooperative  credit  in  Germany,  the  Luzzatti  banks  in 
Italy,  the  effective  cooperation  in  agriculture  in  Den- 
mark —  before  this  committee,  are  there  not  possibilities 
to  be  utilized,  to  be  tested  and  tried  ?  Is  there  not  some 
hope  that  this  committee  may  institute  some  plan 


CONCLUSION  295 

whereby  there  may  be  increased  betterment  of  condi- 
tions in  this  state,  thus  setting  an  example  of  accomplish- 
ment for  other  states  to  follow? 

America  has  a  great  advantage  in  that  our  legislation 
need  not  be  experimental.  Germany,  Denmark,  Aus- 
tralia, New  Zealand,  Canada  and  even  Ireland  and  Italy 
have  laws  which  have  outlived  the  experimental  stage 
and  which  will  be  of  the  greatest  service  to  us  in  our 
advance  toward  the  happiness  and  welfare  of  all,  as  well 
as  the  more  equitable  division  of  the  profits  coming 
from  the  great  wealth  and  strength  of  our  civilization. 
The  small  group  of  socialist  Germans  in  the  legislature 
have  well  understood  that  they  did  not  have  to  advance 
untried  experiments,  hence  they  adopted  a  policy  of 
continuous  education  maintaining  that  certain  laws 
have  existed  in  a  certain  country  and  have  accomplished 
certain  things  and  that  Wisconsin  would  eventually 
have  to  accept  similar  laws.  The  writer  well  remem- 
bers that  when  the  first  workmen's  compensation  bill 
was  introduced  nearly  eight  years  ago,  the  astonished 
members  of  the  legislature  came  to  him  inquiring  if 
such  a  thing  did  exist  in  Germany  and  England.  The 
fact  is,  most  of  the  legislation  which  the  socialists  have 
introduced  has  had  nothing  to  do  with  socialistic  propa- 
ganda but  in  many  cases  has  proposed  the  very  things 
advocated  by  thoughtful  men  in  every  country  of  the 
world  save  America.  It  will  be  remembered  that  the 


296  THE   WISCONSIN  IDEA 

socialists  in  Germany  for  many  years  were  opposed  to 
the  whole  plan  of  industrial  insurance  and  only  recently 
have  accepted  it.  So  far  does  this  plan  of  expediency 
go,  that  one  time  when  the  writer  happened  to  remark 
to  a  socialist  member  that  a  proposed  plan  to  extend 
credit,  by  means  of  a  well  known  European  device  so 
that  workingmen  might  possess  a  little  property,  was 
not  really  socialism,  the  member  replied  with  a  smile, 
"It  is  an  excellent  bill  and  good  enough  socialism  for 
us." 

The  socialists  are  looking  abroad  and  putting  forth 
well  tried  experiments,  mixed  in  many  cases  it  is  true 
with  their  peculiar  propagandist  ideals,  which  because  of 
their  source,  excite  a  blind  and  unreasoning  opposition. 
If  our  people  would  give  more  study  to  great  economic 
movements  in  other  lands  they  would  realize  this  truth. 

So  marked  have  been  the  changes  throughout  the 
world  and  so  astonishing  the  fact  that  they  have  actually 
seemed  to  have  increased  prosperity,  that  the  conserva- 
tive Boston  Transcript  is  compelled  to  remark  in  a  recent 
editorial  on  England :  — 

"  Take  all  together,  this  makes  an  astounding  program  of 
social  improvement,  all  the  more  astounding  in  the  fact  that  it 
should  have  been  undertaken  by  the  staidest  of  all  governments. 
This  marks  a  really  stupendous  innovation  in  governmental  pro- 
cedure. Our  friends,  the  socialists,  have  always  been  ridiculed  for 
their  pet  claim  that  it  is  the  business  of  the  government  to  spread 
happiness  and  plenty  among  the  people.  Yet  here,  in  a  country 


CONCLUSION  297 

the  very  quickest  of  all  to  foam  at  the  very  word  '  Socialism/  is 
a  string  of  acts  each  having  as  its  tacit  side-issue  the  partial  re- 
distribution of  wealth  and  the  spread  of  happiness ! 

"  Thus  far  these  measures,  too,  seem  to  have  worked.  The 
Old-Age  Pensions  act  has  undoubtedly  mitigated  a  great  deal  of 
want  and  misery.  And  the  so-called  '  revolutionary  '  budget,  of 
which  so  much  disaster  was  predicted,  has  left  behind  it  the  un- 
mistakable effect  of  improved  business  conditions  and  greater 
prosperity.  This  latter  effect  may  have  arisen  simply  from  the 
ending  of  a  business  suspense.  Still,  a  very  bad  measure  would 
have  permitted  only  a  halfway  recuperation.  On  the  surface  there 
seems  nothing  impractical  about  these  ventures  of  government  into 
the  sphere  of  humanitarianism.  There  may  be  later  and  hidden 
costs  to  pay,  but  they  are  not  now  apparent.  But  the  point  of  all 
this  is  the  speculation  which  it  warrants. 

"  May  it  not  be  that  the  time  has  come  for  us,  after  all,  to  frame 
slightly  larger  conceptions  of  government  than  we  have  been  hold- 
ing ?  Is  the  chief  end  of  government  any  longer  to  be  the  collec- 
tion of  taxes,  the  maintenance  of  order,  and  the  other  material 
duties  that  have  long  been  held  to  constitute  its  entire  responsi- 
bility? Half  unconsciously  the  men  who  have  framed  a  network 
of  paternalistic  measures  in  Germany,  even  wider  than  that  in 
England,  seem  to  have  assumed  for  government  a  new  moral 
obligation.  And  this  has  been  found  not  to  involve  any  serious 
disturbances  to  property  and  vested  rights.  Are  we  perhaps  going 
down  a  new  path?  Have  these  other  countries  beaten  us  by  a 
decade  to  a  now  old  and  settled  New  Nationalism  ?  " 

Shall  we  always  as  our  great  Judge  Ryan  once  said, 
"stand  by  the  roadside  and  see  the  procession  go  by?" 
Shall  we  always  hear  the  returning  travellers'  tale  of  the 


298  THE   WISCONSIN   IDEA 

improvements  throughout  the  entire  world  with  a  pro- 
vincial and  smug  spirit  and  be  foolish  enough  to  believe 
that  we  can  learn  nothing,  while  right  in  our  midst  are 
problems  which  have  confronted  every  nation  at  some 
time  in  its  history?  Shall  we  always  look  over  the 
boundary  into  Canada  and  wonder  at  its  prosperity,  the 
daring  of  its  lawmakers  and  the  efficiency  and  economy 
of  its  administration?  The  old  cry,  "it  is  unconstitu- 
tional" cannot  much  longer  endure  with  the  present 
American  awakening  and  an  analysis  must  soon  be  made 
of  the  growing  strength  of  these  worldwide  economic 
improvements.  Shall  we  always  be  deceived  by  the  cry 
of  "Socialism"  whenever  it  is  necessary  to  use  the  state 
to  a  greater  degree  than  formerly?  Are  there  not  ele- 
ments and  ideas  which  the  socialists  have  adopted  from 
which  it  is  a  far  cry  indeed  to  the  state  ownership  of  all 
the  instruments  of  production  ? 

After  a  careful  study  of  socialism  in  Germany  the 
writer  has  come  to  the  conclusion  that  many  of  the 
reforms  advocated  by  that  party  will  eventually  lead  to 
the  destruction  of  its  main  thesis.  The  individual  initia- 
tive and  the  efficiency  of  the  individual  caused  by  the 
breaking  up  of  class  distinctions,  the  establishment  of 
merit  and  ability  in  the  place  of  family  or  title,  the 
equitable  distribution  of  taxation  and  the  very  equality 
of  opportunity  resulting,  will  lead  to  an  individuality 
which  will  cause  men  to  press  forward  in  the  acquisition 


CONCLUSION  299 

of  private  property.  Those  who  have  seen  the  land 
hunger  of  the  American  immigrant  can  well  testify  to 
that.  Provide  the  ladder,  make  free  the  way  and 
human  beings  will  climb  and  no  plan  ever  made  by  Karl 
Marx  or  any  other  man,  of  whatever  party  or  sect,  will 
prevent  the  acquisition  of  private  property.  The  rise  of 
the  newly  rich  class,  the  evidence  of  which  is  seen  in  the 
streets  of  Berlin  almost  as  much  as  in  the  streets  of  New 
York,  proves  my  thesis.  Are  there  then,  issues  appro- 
priated by  socialism  which  are  really  the  strength  of 
these  movements?  Certainly  the  socialists  in  the  Wis- 
consin legislature  advocate,  in  the  greater  part,  humane 
legislation  which  could  be  very  well  advocated  by  the 
most  bitter  opponents  of  this  party  and  which  in  many 
cases  has  nothing  to  do  with  the  propaganda  of  the 
theory  of  state  ownership.  Says  Jane  Addams :  — 

"  Is  it  because  our  modern  industrialism  is  so  new  that  we  have 
been  slow  to  connect  it  with  the  poverty  all  about  us?  The  so- 
cialists talk  constantly  of  the  relation  of  economic  wrong  to  desti- 
tution, and  point  out  the  connection  between  industrial  maladjust- 
ment and  individual  poverty,  but  the  study  of  social  conditions, 
the  obligation  to  eradicate  poverty,  cannot  belong  to  one  political 
party  nor  to  one  economic  school,  and  after  all  it  was  not  a  social- 
ist, but  that  ancient  friend  of  the  poor,  St.  Augustine,  who  said, 
'  Thou  givest  bread  to  the  hungry,  but  better  were  it,  that  none 
hungered  and  thou  had'st  none  to  give  to  him.'  " 

Is  it  good  policy  or  good  politics  to  allow  the  socialists 
to  become  the  champions  of  women  in  industry,  the  de- 


300  THE   WISCONSIN   IDEA 

fender  of  the  child  from  exploitation,  friend  of  the  poor 
and  downtrodden  and  yet  expect  to  defeat  them  at  the 
polls  in  a  period  characterized  by  growing  humane  feel- 
ing ?  Can  we  wrap  in  a  parcel  everything  which  Chris- 
tianity has  approved  since  the  time  of  the  Great  Founder 
and  label  it,  " Socialism,  don't  touch"  ?  When  it  comes 
to  the  attainment  of  any  reasonable  legislation  for  the 
true  betterment  of  human  beings,  the  only  way  to  beat 
the  Socialists  "is  to  beat  them  to  it." 

The  hardy  woodsman,  the  sturdy  American  who  has 
battled  with  the  elements,  swift  rivers  and  vast  forests, 
may  frown  at  the  suggestion  of  legislation  mentioned 
here.  This  man  in  the  legislature,  powerful  in  his  own 
strength,  frowns  upon  laws  for  the  limiting  of  hours  of 
labor  for  women  and  children  as  "un-American."  It 
will  be  felt  by  men  of  this  kind  (and  they  have  been  the 
sturdy  old  oaks  of  American  life  after  all)  that  there  is 
something  very  softening  in  this  kind  of  legislation. 
Indeed  a  weakening  influence  may  occasionally  creep  in 
but  by  looking  over  long  periods  of  time  we  find  that 
selfishness  has  always  won,  so  it  is  not  the  softening 
influence  that  we  need  to  fear  but  the  pauperizing  in- 
fluence, which  comes  from  another  kind  of  paternalism 
-  that  of  the  largess  of  the  great  millionnaire  or  the 
successful  proconsul  of  ancient  Rome.  The  pages  of 
Gibbon  and  Ferrero  are  full  of  instances  which  are  com- 
parable to  actual  conditions  in  our  own  country  to-day. 


CONCLUSION  301 

There  is  a  corrupt  influence  from  large  concentration  of 
wealth  and  its  unhappy  distribution  which  will  cause 
more  beggarism,  more  softening  and  more  syncophancy 
than  all  the  laws  which  can  be  put  upon  the  statute 
books  regulating  the  hours  of  labor  of  women  and  chil- 
dren. Indeed  the  story  of  prosperity  in  every  country 
shows  the  same  picture  again  and  again  —  pictures 
which  one  may  find  in  New  York  City  any  time. 

Says  our  great  historical  student,  Professor  J.  Franklin 
Jameson :  — 

"  Why  do  not  Americans  study  more  intently  the  age  of  the 
AntoninesJ^  There  they  will  find  a  state  of  society  singularly  re- 
sembling own  —  a  world:  grown  prosperous  and  soft  and  hu- 
mane, with  long-continued  peace  and  abounding  industrial  devel- 
opment, a  population  formed  by  the  mixture  of  all  races,  in  which 
the  ancient  stock  still  struggles  to  rule  and  to  assimilate,  but  is 
powerless  to  preserve  unimpaired  its  traditions,  a  mushroom 
growth  of  cities,  a  universal  passion  for  organization  into  industrial 
unions  and  fraternal  orders,  a  system  in  which  woman  has  excep- 
tionally full  equality  with  man,  a  society  in  which  the  newly  rich 
occupy  the  centre  of  the  stage,  offending  the  eye  with  the  vulgar 
display  of  brute  wealth  yet  pacifying  the  mind  and  heart  with  the 
record  of  numberless  and  kindly  benefactions." 

Yet  all  the  causes  of  the  decline  of  Rome  were  work- 
ing in  this  soil  —  the  results  were  not  long  in  forthcoming. 

In  these  days  of  the  ocean  cable  and  the  fast  racers  of 
the  sea,  waves  of  public  opinion  and  thought  and  the 
struggles  of  other  lands  reach  us  so  quickly,  that  whether 


302  THE   WISCONSIN   IDEA 

for  good  or  evil,  great  and  sudden  changes  are  emerging 
from  this  turmoil.  We  are  encountering  but  the  first 
wavelets  of  what  appears  to  be  a  flood  of  mighty  forces. 
Will  our  grand  old  constitution  stand  the  shock  ?  Will 
the  splendid  American  spirit  and  ideals  of  the  past  be 
submerged  ?  The  best  there  is  of  our  sturdy  individual- 
ism must  be  preserved.  In  Wisconsin,  the  wise  leaders 
have  foreseen  this  and  are  determined  to  keep  intact 
every  bit  of  the  spirit  of  the  men  who  made  the  "Iron 
Brigade"  and  hence  are  building  slowly  and  surely  the 
beginnings  of  a  new  individualism. 

This  little  book  advocates  no  new  philosophy  or  doc- 
trine; there  is  no  "ism"  in  mis  plan,  it  uiu  }>  simply 
logical  consideration  of  one  thing  after  another  as  neces- 
sity appears.  Every  other  plan  of  man,  however  wise 
and  complete  it  may  have  been,  has  failed.  Place  before 
the  American  people  the  ideal  of  Lincoln  and  search 
keenly  into  our  conditions  to  discover  why  there  are  not 
more  Lincolns.  If  in  our  modern  life,  conditions  are  not 
conducive  to  the  highest  type  of  American  manhood,  we 
should  attempt  to  find  some  way  of  helping  men  to 
help  themselves.  What  is  the  need  of  a  philosophy  or 
an  "ism"  when  there  is  obvious  wrong  to  be  righted? 
Whatever  has  been  accomplished  in  Wisconsin  seems  to 
have  been  based  upon  this  idea  of  making  practice  con- 
form to  the  ideals  of  justice  and  right  which  have  been 
inherited.  If  the  weak  ask  for  justice,  the  state  should 


CONCLUSION  303 

see  that  they  get  it  certainly,  quickly  and  surely.  If 
certain  social  classes  are  forming  among  us,  can  we  not 
destroy  them  by  means  of  education  and  through  hope 
and  encouragement  make  every  man  more  efficient  so 
that  the  door  of  opportunity  may  always  be  open  before 
him? 

If  you  were  responsible  for  the  business  of  govern- 
ment, would  you  not  apply  the  common  rules  of  effi- 
ciency, Mr.  Business  Man  ?  Do  you  not  believe  it  would 
pay  well  to  make  a  heavy  investment  in  hope,  health, 
happiness  and  justice?  Do  you  not  think  you  would 
get  enormous  dividends  in  national  wealth  ?  Isn't  there 
something  worth  while,  something  which  will  pay  in  the 
strong  ideal  of  this  New  Individualism  of  Wisconsin? 


APPENDIX 


APPENDIX 

BIBLIOGRAPHY 

Banking.    Banking  laws  of  Wisconsin  governing  state  banks, 
mutual  savings  banks,  trust  company  banks.    Madison,  1911. 

53  P- 

Apply  to  Bank  commissioner,  Madison,  Wis. 
Child  labor.    Child  labor  and  hours  of  labor  for  women.     (Wiscon- 
sin laws.)     1911.     12  p. 

Issued  by  Industrial  commission,  Madison,  Wis. 
Civil  service.     Civil  service  law  of  Wisconsin  is  not  printed  in 
pamphlet  form,  but  may  be  found  in  the  latest  civil  service 
commission  report. 

Commission  government.    Wisconsin  law :  commission  form  of  city 
government.    Madison,  1911.     16  p. 

Issued  by  Secretary  of  state,  Madison,  Wis. 
Corrupt  practices.    Wisconsin  corrupt  practices  law,  chapter  650, 
1911.    Madison,  1911.     i6.p. 

Issued  by  Secretary  of  state,  Madison,  Wis. 
Industrial  commission.    Industrial  commission  law,  chapter  485, 
laws  of  191 1.     15  p. 

Issued  by  Industrial  commission,  Madison,  Wis. 
Industrial  education.    Report  of  the  commission  upon  the  plans 
for  the  extension  of  industrial  and  agricultural  training  sub- 
mitted to  the  governor,  January  10,  1911.    Madison,  1911. 

135  P- 
Apply  to  Legislative  reference  department,  Madison,  Wis. 

307 


308  THE   WISCONSIN   IDEA 

Insurance.  Wisconsin  insurance  laws  in  effect  on  or  before  July 
22,1911.  Madison,  1911.  274  p. 

Issued  by  Secretary  of  state,  Madison,  Wis. 
Libraries.    Laws  of  Wisconsin  relating  to  libraries  and  the  free 
library  commission.     Madison,  1911.     68  p. 

Issued  by  Wisconsin  free  library  commission,  Madison,  Wis. 
Presidential  primary.    Wisconsin  law  relating  to  election  of  dele- 
gates to  national  conventions,  direct  vote  for  presidential 
candidates,  nomination  of  presidential  electors.     Madison, 
1911. 

Issued  by  Secretary  of  state,  Madison,  Wis. 

Public  utilities.     Compilation  of  laws  affecting  the  regulation  of 
public  utilities,  1907-1911.     Madison,  1911.     no  p. 
Published  by  the  Railroad  commission  of  Wisconsin,  Madi- 
son, Wis. 

Railroads.     Compilation  of  laws  affecting  the  regulation  of  rail- 
roads, 1905-1911.     Madison,  1911.     126  p. 
Published  by  the  Railroad  commission  of  Wisconsin,  Madi- 
son, Wis. 

Stocks  and  bonds.  Stock  and  bond  law,  chapter  593,  laws  of  1911, 
applying  to  railroad,  street  railway,  telegraph,  telephone,  ex- 
press, freight  line,  sleeping  car,  light,  heat,  water  and  power 
corporations.  1911.  18  p. 

Published  by  the  Railroad  commission  of  Wisconsin,  Madi- 
son, Wis. 

Taxation.  Inheritance  tax  laws  of  Wisconsin  in  force  July  5, 1911. 
1911.  8  p. 

Issued  by  Secretary  of  state,  Madison,  Wis. 
Taxation.    Tax  laws  of  Wisconsin.     1911. 

At  the  time  of  going  to  press,  this  publication  is  not  yet  issued, 
although  the  Tax  commission  is  now  compiling  the  data. 


BIBLIOGRAPHY  309 

Taxation.    Wisconsin  income  tax  law,  chapter  658,  laws  of  1911. 
1911.    8  p. 

Issued  by  Secretary  of  state,  Madison,  Wis. 
Workmen's   compensation.    Workmen's   compensation   act   with 
notes  of  legislative  committee  and  forms  and  rules  of  indus- 
trial accident  board.     1911.    48  p. 
Issued  by  Industrial  commission,  Madison,  Wis. 

INITIATIVE   AND   REFERENDUM   RESOLUTION 
JOINT  RESOLUTION  No.  74,  Laws  of  1911 

To  amend  section  i,  of  article  IV  of  the  constitution,  to  give  to 
the  people  the  power  to  propose  laws  and  to  enact  or  reject 
the  same  at  the  polls,  and  to  approve  or  reject  at  the  polls  any 
act  of  the  legislature ;  and  to  create  section  3,  of  article  XII 
of  the  constitution,  providing  for  the  submission  of  amend- 
ments to  the  constitution  upon  the  petition  of  the  people. 
Resolved  by  the  Assembly,  the  Senate  concurring,  That  section 
i,  of  article  IV  of  the  constitution,  be  amended  to  read : 

SECTION  i.  i.  The  legislative  power  shall  be  vested  in  a 
senate  and  assembly,  but  the  people  reserve  to  themselves  power, 
as  herein  provided,  to  propose  laws  and  to  enact  or  reject  the  same 
at  the  polls,  independent  of  the  legislature,  and  to  approve  or  re- 
ject at  the  polls  any  law  or  any  part  of  any  law  enacted  by  the 
legislature.  The  limitations  expressed  in  the  constitution  on  the 
power  of  the  legislature  to  enact  laws,  shall  be  deemed  limita- 
tions on  the  power  of  the  people  to  enact  laws. 

2.  (a)  Any  senator  or  member  of  the  assembly  may  introduce, 
by  presenting  to  the  chief  clerk  in  the  house  of  which  he  is  a  mem- 
ber, in  open  session,  at  any  time  during  any  session  of  the  legis- 
lature, any  bill  or  any  amendment  to  any  such  bill ;  provided,  that 


310  THE   WISCONSIN   IDEA 

the  time  for  so  introducing  a  bill  may  be  limited  by  rule  to  not  less 
than  thirty  legislative  days. 

(b)  The  chief  clerk  shall  make  a  record  of  such  bill  and  every 
amendment  offered  thereto  and  have  the  same  printed. 

3.  A  proposed  law  shall  be  recited  in  full  in  the  petition,  and 
shall  consist  of  a  bill  which  has  been  introduced  in  the  legislature 
during  the  first  thirty  legislative  days  of  the  session,  as  so  intro- 
duced ;  or,  at  the  option  of  the  petitioners,  there  may  be  incor- 
porated in  said  bill  any  amendment  or  amendments  introduced  in 
the  legislature.     Such  bill  and  amendments  shall  be  referred  to  by 
number  in  the  petition.     Upon  petition  filed  not  later  than  four 
months  before  the  next  general  election,  such  proposed  law  shall 
be  submitted  to  a  vote  of  the  people,  and  shall  become  a  law  if  it  is 
approved  by  a  majority  of  the  electors  voting  thereon,  and  shall 
take  effect  and  be  in  force  from  and  after  thirty  days  after  the  elec- 
tion at  which  it  is  approved. 

4.  (a)  No  law  enacted  by  the  legislature,  except  an  emergency 
law,  shall  take  Qffect  before  ninety  days  after  its  passage  and  publi- 
cation.    If  within  said  ninety  days  there  shall  have  been  filed  a 
petition  to  submit  to  a  vote  of  the  people  such  law  or  any  part 
thereof,  such  law  or  such  part  thereof  shall  not  take  effect  until 
thirty  days  after  its  approval  by  a  majority  of  the  qualified  elec- 
tors voting  thereon. 

(b)  An  emergency  law  shall  remain  in  force,  notwithstanding 
such  petition,  but  shall  stand  repealed  thirty  days  after  being 
rejected  by  a  majority  of  the  qualified  electors  voting  thereon. 

(c)  An  emergency  law  shall  be  any  law  declared  by  the  legis- 
lature to  be  necessary  for  any  immediate  purpose  by  a  two-thirds 
vote  of  the  members  of  each  house  voting  thereon,  entered  on  their 
journals  by  the  yeas  and  nays.     No  law  making  any  appropriation 
for  maintaining  the  state  government  or  maintaining  or  aiding 


BIBLIOGRAPHY  311 

any  public  institution,  not  exceeding  the  next  previous  appropria- 
tion for  the  same  purpose,  shall  be  subject  to  rejection  or  repeal 
under  this  section.  The  increase  in  any  such  appropriation  shall 
only  take  effect  as  in  case  of  other  laws,  and  such  increase,  or  any 
part  thereof,  specified  in  the  petition  may  be  referred  to  a  vote  of 
the  people  upon  petition. 

5.  If  measures  which  conflict  with  each  other  in  any  of  their 
essential  provisions  are  submitted  at  the  same  election,  only  the 
measure  receiving  the  highest  number  of  votes  shall  stand  as  the 
enactment  of  the  people. 

6.  The  petition  shall  be  filed  with  the  secretary  of  state  and 
shall  be  sufficient  to  require  the  submission  by  him  of  a  measure 
to  the  people  when  signed  by  eight  per  cent  of  the  qualified  elec- 
tors calculated  upon  the  whole  number  of  votes  cast  for  governor 
at  the  last  preceding  election,  of  whom  not  more  than  one-half  shall 
be  residents  of  any  one  county. 

7.  The  vote  upon  measures  referred  to  the  people  shall  be  taken 
at  the  next  election  occurring  not  less  than  four  months  after  the 
filing  of  the  petition,  and  held  generally  throughout  the  state  pur- 
suant to  law  or  specially  called  by  the  governor. 

8.  The  legislature  shall  provide  for  furnishing  electors  the  text 
of  all  measures  to  be  voted  upon  by  the  people. 

9.  Except  that  measures  specifically  affecting  a  subdivision  of 
the  state  may  be  submitted  to  the  people  of  that  subdivision,  the 
legislature  shall  submit  measures  to  the  people  only  as  required  by 
the  constitution. 

BE  IT  FURTHER  RESOLVED  by  the  assembly,  the  senate  con- 
curring, That  article  XII  of  the  constitution,  be  amended  by 
creating  a  new  section  to  read :  — 

SECTION  3.  i.  (a)  Any  senator  or  member  of  the  assembly 
may  introduce,  by  presenting  to  the  chief  clerk  in  the  house  in 


312  THE   WISCONSIN  IDEA 

which  he  is  a  member,  in  open  session,  at  any  time  during  any 
session  of  the  legislature,  any  proposed  amendment  to  the  consti- 
tution or  any  amendment  to  any  such  proposed  amendment  to 
the  constitution;  provided,  that  the  time  for  so  introducing  a 
proposed  amendment  to  the  constitution  may  be  limited  by  rule 
to  not  less  than  thirty  legislative  days. 

(6)  The  chief  clerk  shall  make  a  record  of  such  proposed  amend- 
ments to  the  constitution  and  any  amendment  thereto  and  have 
the  same  printed. 

2.  Any  proposed  amendment  to  the  constitution  shall  be  re- 
cited in  full  in  the  petition  and  shall  consist  of  an  amendment  which 
has  been  introduced  in  the  legislature  during  the  first  thirty  legis- 
lative days,  as  so  introduced,  or,  at  the  option  of  the  petitioners, 
there  may  be  incorporated  therein  any  amendment  or  amendments 
thereto  introduced  in  the  legislature.    Such  amendment  to  the  con- 
stitution and  amendments  thereto  shall  be  referred  to  by  number  in 
the  petition.     Upon  petition  filed  not  later  than  four  months  before 
the  next  general  election,  such  proposed  amendment  shall  be  sub- 
mitted to  the  people. 

3.  The  petition  shall  be  filed  with  the  secretary  of  state  and 
shall  be  sufficient  to  require  the  submission  by  him  of  a  proposed 
amendment  to  the  constitution  to  the  people  when  signed  by  ten 
per  cent  of  the  qualified  electors,  calculated  upon  the  whole  num- 
ber of  votes  cast  for  governor  at  the  last  preceding  election  of 
whom  not  more  than  one-half  shall  be  residents  of  any  one  county. 

4.  Any  proposed  amendment  or  amendments  to  this  constitu- 
tion, agreed  to  by  a  majority  of  the  members  elected  to  each  of  the 
two  houses  of  the  legislature,  shall  be  entered  on  their  journals  with 
the  yeas  and  nays  taken  thereon,  and  be  submitted  to  the  people 
by  the  secretary  of  state  upon  petition  filed  with  him  signed  by 
five  per  cent  of  the  qualified  electors,  calculated  upon  the  whole 


BIBLIOGRAPHY  313 

number  of  votes  cast  for  governor  at  the  last  preceding  election 
of  whom  not  more  than  one-half  shall  be  residents  of  any  one 
county. 

5.  The  legislature  shall  provide  for  furnishing  the  electors  the 
text  of  all  amendments  to  the  constitution  to  be  voted  upon  by 
the  people. 

6.  If  the  people  shall  approve  and  ratify  such  amendment  or 
amendments  by  a  majority  of  the  electors  voting  thereon,  such 
amendment  or  amendments  shall  become  a  part  of  the  constitu- 
tion, from  and  after  the  election  at  which  approved ;  provided,  that 
if  more  than  one  amendment  be  submitted  they  shall  be  submitted 
in  such  manner  that  the  people  may  vote  for  or  against  such  amend- 
ments separately. 

7.  If  proposed  amendments  to  the  constitution  which  conflict 
with  each  other  in  any  of  their  essential  provisions  are  submitted 
at  the  same  election,  only  the  proposed  amendment  receiving  the 
highest  number  of  votes  shall  become  a  part  of  the  constitution. 

:» 
,.  :;  ' 

MEN   SERVING   BOTH   UNIVERSITY   AND    STATE 
FOR    1910-1911 

A.  MEN  WHO  RECEIVE  COMPENSATION  BOTH  FROM  UNIVERSITY 
AND  STATE 

I.  DEFINITE  COMBINATION  ARRANGEMENT 

E.  A.  BIRGE.  Dean  of  the  college  of  letters  and  science ;  Superin- 
tendent of  the  geological  and  natural  history  survey.  (Also 
serves  as  member  of  Fish  commission,  Forestry  commission, 
Conservation  commission.) 

C.  F.  BURGESS.  Professor  of  chemical  engineering ;  on  engineer- 
ing staff  Railroad  and  Tax  commissions. 

R.  FISCHER.    Professor  of  chemistry ;  Dairy  and  food  commission. 


314  THE   WISCONSIN   IDEA 

C.  JUDAY.  Lecturer  in  zoology ;  Biologist,  Geological  and  natural 
history  survey. 

J.  G.  D.  MACK.  Professor  of  machine  design;  on  engineering 
staff  Railroad  and  Tax  commissions. 

W.  D.  PENCE.  Professor  of  railway  engineering;  engineer  Rail- 
road and  Tax  commissions. 

R.  G.  THWAITES.  Secretary  Wisconsin  historical  society;  Wiscon- 
sin free  library  commission;  Lecturer  in  history. 

2.    NO  DEFINITE   COMBINATION   ARRANGEMENT 

G.  H.  BENKENDORF.  Assistant  professor  of  dairy  husbandry; 
Secretary  Wisconsin  buttermakers'  association. 

C.  G.  BURRITT.  Instructor  in  railway  engineering ;  on  engineer- 
ing staff  Railroad  and  Tax  commissions. 

J.  A.  CUTLER.  Instructor  in  topographical  engineering.  Fifteen 
hours  per  week  assistance  on  Mr.  Stewart's  report  on  storage 
reservoirs. 

M.  J.  KERSCHENSTEINER.  Assistant  in  business  administration; 
Tax  commission. 

O.  L.  KOWALKE.  Instructor  in  chemical  engineering ;  on  Engineer- 
ing staff  Railroad  and  Tax  commissions.  (He  has  also  made 
numerous  tests  of  coals  and  fuels  for  various  state  institutions.) 

R.  A.  MOORE.  Professor  of  agronomy ;  Secretary  experiment  as- 
sociation. 

W.  A.  SCOTT.  Professor  of  political  economy;  Director  course  in 
commerce ;  State  teachers'  examiner. 

H.  J.  THORKELSON.  Associate  professor  of  steam  engineering; 
on  engineering  staff  Railroad  and  Tax  commissions ;  Engineer 
for  state  board  of  control. 

J.  S.  VOSSKUEHLER.  Assistant  professor  of  machine  design;  on 
engineering  staff  Railroad  and  Tax  commissions.  Dis- 
continued by  resignation  at  end  of  first  semester,  1910-1911. 


BIBLIOGRAPHY  315 

B.  MEN  WHO  RECEIVE  COMPENSATION  FROM  UNIVERSITY  SERVING 
ON  STATE  COMMISSIONS,  ETC.,  WITHOUT  COMPENSATION  FROM 
THE  STATE 

J.  G.  HALPIN.  Assistant  professor  of  poultry  husbandry  ;  Secre- 
tary of  Wisconsin  poultry  association. 

E.  G.  HASTINGS.  Associate  professor  of  agricultural  bacteriology ; 
ex-officio  member  of  the  State  live  stock  sanitary  board,  as 
Bacteriologist  of  the  agricultural  college. 

G.  C.  HUMPHREY.  Professor  of  animal  husbandry;  ex-officio 
member  of  Wisconsin  live  stock  breeder's  association,  as  Chair- 
man of  department  of  animal  husbandry. 

L.  KAHLENBERG.  Director  of  course  in  chemistry ;  Professor  of 
chemistry ;  Member  of  the  Geological  and  natural  history  sur- 
vey. 

G.  MCKERROW.  Superintendent  of  farmers'  institutes ;  Member 
of  live  stock  sanitary  board,  board  of  agriculture. 

H.  L.  RUSSELL.  Dean  of  college  of  agriculture ;  Director  of  agri- 
cultural experiment  station;  ex-officio  member  of  the  State 
board  of  forestry ;  President  of  the  advisory  board  Wisconsin 
state  tuberculosis  sanatorium;  ex-officio  member  of  State 
board  of  immigration. 

J.  G.  SANDERS.  Assistant  professor  of  economic  entomology ; 
Chief  orchard  and  nursery  inspector,  appointed  by  the  gov- 
ernor. (Fees  for  Nursery  licenses  go  to  University.) 

L.  S.  SMITH.  Associate  professor  of  topographical  and  geodetic 
engineering;  State  sealer  of  weights  and  measures.  (Has 
also  assisted  the  legislature  relative  to  this  matter.) 

A.  L.  STONE.  Professor  of  agronomy ;  in  charge  of  Seed  inspection 
service  as  authorized  by  legislative  act.  (All  fees  collected 
for  analytical  work  go  directly  into  the  state  treasury,  but 
Stone  receives  no  compensation  for  his  work.) 


316  THE  WISCONSIN  IDEA 

F.  E.  TURNEAURE.  Dean  of  the  college  of  engineering ;  Member 
of  the  Wisconsin  highway  commission,  and  the  Wisconsin 
commission  of  industrial  education.  (Has  also  rendered 
some  assistance  to  the  Legislative  committee  on  water  power.) 

C.  R.  VAN  HISE.    President  of  university ;  Member  of  forestry 

commission;  Free  library  commission,  President  Geological  and 
natural  history  survey ;  Chairman  Conservation  commission. 
GEORGE  WAGNER.    Assistant  professor  of  zoology ;  work  on  Geo- 
logical and  natural  history  survey. 
A.  R.  WHITSON.    Professor  of  soils ;  in  charge  of  Soil  survey,  for 

the  Wisconsin  Geological  and  natural  history  survey. 
The  preceding  men  have  definite  official  positions.    Without 
such  definite  positions  a  large  number  of  men  serve  the  state  bu- 
reaus in  various  ways  as  called  upon.    Among  them  are  the  fol- 
lowing :  — 

J.  R.  COMMONS.    Professor  of  political  economy. 

E.  C.  ELLIOTT.    Director  of  course  for  training  of  teachers. 

E.  A.  GILMORE.    Professor  of  law. 

F.  T.  HAVARD.    Assistant  professor  of  mining  engineering;   re- 

search work  relative  to  the  quality  of  clays  in  the  state,  at 
request  of  Wisconsin  brick  manufacturers'  association. 

A.  B.  HALL.    Instructor  in  political  science. 

CHESTER  LLOYD  JONES.    Associate  professor  of  political  science. 

H.  L.  McBAiN.    Associate  professor  of  political  science. 

D.  W.  MEAD.    Professor  of  hydraulic  and  sanitary  engineering. 

Spent  several  days  during  the  past  year  before  legislative 

committees  and  is  at  present  in  charge  of  the  reconstruction 

work  at  Black  River  Falls. 
W.  U.  MOORE.    Professor  of  law. 
M.  P.  RAVENEL.    Professor  of  bacteriology;   Director  hygienic 

laboratory. 


BIBLIOGRAPHY  317 

P.  S.  REINSCH.    Professor  of  political  science. 

H.  S.  RICHARDS.    Dean  of  law  school ;  Professor  of  law. 

E.  A.  Ross.    Professor  of  sociology. 

Various  members  of  the  medical  staff. 

C.  MEN  WITH  COMPENSATION  FROM  STATE  SERVING  ON  UNIVER- 
SITY STAFF  WITHOUT  COMPENSATION 

T.  S.  ADAMS.    Tax  commissioner ;  Professor  of  political  economy. 

M.  S.  DUDGEON.  Secretary  free  library  commission;  Instruc- 
tor in  political  science. 

E.  M.  GRIFFITH.     State  forester ;  Lecturer  in  forestry. 

CHARLES  MCCARTHY.  Librarian  legislative  reference  department ; 
Lecturer  in  political  science. 


INDEX 


Addams,  Jane,  on  social  improve- 
ment, 299. 

Administration,  science  of,  186. 

Agricultural  education,  126. 

Agriculture,  college  of,  see  Wiscon- 
sin university,  college  of  agri- 
culture, 126. 

Agriculture,  county  schools  of,  see 
County  schools  of  agriculture, 
126. 

Appointive  offices,  172. 

Apprenticeship,  142. 

Appropriations,  continuing,  203. 
continuing  for  commissions,  40. 
procedure    relative  to,  in  legisla- 
ture, 201. 

Armstrong  committee,  227. 

Attorney  general,  limitations  of 
powers  of,  240. 

Australian  ballot,  123. 

Bankers'  mutual  insurance  com- 
panies for  protection  of  depos- 
itors, 78. 

Banking  law,  87. 

Bascom,  John,  influence  of,  21. 

Bills,  introduction  of,  in  legislature, 

229. 

rules    for   drafting  in  legislative 
reference  department,  197. 

Board  of  public  affairs,  see  Public 
affairs,  state  board  of. 

Bonaparte,  Charles,  on  judges  as 
law  makers,  238. 


Bookkeeping,  public,  46. 

Boston  Transcript,  editorial  on  social 

improvement,  296. 
Budget,  201. 

Campaign  expenses,  101. 
Civil  service,  174,  190. 

exemption  from,  176. 
College  of  agriculture,  see  Wiscon- 
sin  university,  college  of  agri- 
culture. 

Commerce  court,  235. 
Commissions,  appointive,  45,  172. 
dangers  of,  179. 
devices  used  in,  45. 
Common  schools,  tax  for,  86. 
Comparative  legislation,  216,  248. 
Competition,  I. 
Conservation,  153. 
Constitution,  state,  208. 
Constitutional  amendments,  274. 

initiative  applied  to,  118. 
Constitutionality  of  laws,  power  of 

courts  to  pass  upon,  208. 
Cbntract,  right  of,  2. 
Corporations,  abuses  of,  against  in- 
dividuals, 47. 
inability  of  individual  to  contend 

with,  46. 
Corrupt  practices,  100. 

procedure,  106. 
Cost  of  service,  59. 
County      schools     of     agriculture, 
126. 


319 


320 


INDEX 


Courts,    assumption    of    legislative 

power  by,  267. 
inability  to  handle  economic  cases, 

235- 
power  to  pass  on  constitutionality 

of  laws,  208. 
procedure  in,  239. 
Criminal  procedure,  253. 

Decisions  of  judges,  see  Judicial  de- 
cisions, recall. 

Delegates  to  national  convention, 
primary  election  of,  93. 

Depreciation,  61. 

Direct  election  of  United  States 
senators,  122. 

Efficiency,  192. 

Ekern,  H.  L.,  on  advance  in  insur- 
ance legislation,  73. 
Elections,  limitation  of  expenditure 

of  money  to  secure,  101. 
non-partisan  in  cities,  123. 
offences,  100. 

United  States  senators,  122. 
Electric  light  companies,  taxation  of, 

82. 

Ely,  R.  T.,  on  inability  of  small  city 
to  contend  with  corporations, 

47- 

on  trusts,  5. 
teachings  of,  27. 
Employers'  liability,  156,  165. 
Equitable  Life  Assurance  Society  of 
New  York,  withdrawal  of,  from 
Wisconsin,  75. 
Experts,  trained,  on  commissions,  46. 

wrong  type  of,  188. 
Extension  division  of  the  university, 
see  Wisconsin  university,  exten- 
sion division. 


Fire    insurance,    investigation    on, 

80. 
state  fund  to  provide  for  loss  on 

state  property,  79. 
Food,  pure,  171. 
Forestry,  153. 
Fraternal  insurance,  76. 
Freight  line  companies,  taxation  of, 

82. 
Freund,  Ernst,   on   legislation   and 

jurisprudence,  242,  247. 

Germans  in  Wisconsin,  20. 

Germany,  development  of  legislation 

in,  24. 

influence  of  scholars  upon  legisla- 
tion in,  1 86. 

Going  value,  59. 

Government  insurance,  see  State  in- 
surance. 

Granger  movement  in  Wisconsin,  37. 

Guarantee  of  bank  deposits,  76. 

Hall,  A.  R.,  early  advocate  of  ad  va- 
lorem taxation  of  railroads,  38. 

Hatton,  W.  H.,  on  plans  for  railroad 

commission  law,  41. 
on  relation  of  municipalities  and 
public  utilities,  69. 

Health  and  public  welfare,  156. 

Health,  board  of,  1 70. 
in  relation  to  state  hygienic  lab- 
oratory, 170. 

Hearings  before  committees  of  the 
legislature,  199. 

Heating  and  power  companies,  taxa- 
tion of,  82. 

Home  rule,  66. 

Hornblower,  Judge,  on  difficulties  of 
law  making,  209. 


INDEX 


321 


Ihering,  Rudolph  von,  on  the  strug- 
gle for  law,  266. 

Illiterates,  142. 

Income  tax,  83. 

Indeterminate  permits,  6 1,  64. 

Individual,  cases  showing  abuses  of 

corporation  against,  49. 
diagram  showing  inability  to  con- 
tend with  corporations,  47. 

Industrial  commission,  162. 

Industrial  education,  127,  141. 

Industrial  insurance,  see  Workmen's 
compensation. 

Industrial  liberty,  doctrine  of,  in  the 
United  States,  25. 

Initiative,  see  Referendum. 

Insurance,    commissioner,    an    ap- 
pointive officer,  79. 
regulation,  73. 

Jameson,  J.  F.,  on  dangers  of  pros- 
perity, 301. 

Judge-made    law,  see   Law,  judge- 
made. 

Judges,  233,  255. 

primary    election    law    does    not 

apply  to,  92. 
recall  of,  122,  255,  269. 

Judicial  decisions,  recall,  122,  255, 
269. 

Laissez  faire,  doctrine  of,  25. 
Law,  how  actually  made,  218. 
judge-made,  221,  233. 
power  of  courts  to  pass  upon  con- 
stitutionality of,  208. 
revisor  of  statutes  to  codify,  208. 
Law  schools,   faulty  instruction  of, 

238,  253. 

Legislation,    no    delegation    of,    to 
railroad  commission,  45. 

Y 


in  Wisconsin,  influence  of  German 

ideas  and  ideals  upon,  26. 
Legislative    reference    department, 

196,  214. 

non-partisanship  essential,  218. 
Legislature,  194. 

commissions  appointed  by,  170. 
hearings    before    committees    of, 

199. 

length  of  sessions  of,  206. 
notable  legislation  of,  in  191 1,  274. 
Libraries,  traveling,  152. 
Lush,  C.  K.,  on  second  choice,  93. 

Majority  elections,  see  Second 
choice. 

Marshall,  Judge,  on  work  of  the 
courts,  263. 

Mileage  books,  regulation  of,  41. 

Monopoly,  I. 

Municipal  ownership,  65,  67. 

Municipalities,  public  utilities  in  re- 
lation to,  69. 

Mutual  employers'  liability  insurance 
companies,  76. 

Mutual  life  insurance  companies,  76. 

Normal  schools,  tax  for,  86. 
Norwegians  in  Wisconsin,  20. 

O'Reilly,  J.  B.,  on  relation  of  wealth 
and  poverty,  7. 

Passes,  regulation  of,  41. 

Physical  connection  of  telephones, 
see  Telephones,  physical  con- 
nection of. 

Physical  valuation,  59. 

Political  purposes,  limitation  of  ex- 
penditure of  money  for,  101. 

Potter  law,  37. 


322 


INDEX 


Presidential    preference,    provision 
made  for  statement  of,  in  pri- 
mary election  law,  93,  98. 
Primary  election  law,  88. 
Public  affairs,  state  board  of,  202, 

253,  292. 

Public  utilities,  act,  58. 
home  rule,  65. 
increase  of  business  of,  under  law, 

286. 

indeterminate  permits,  61,  64. 
opinion  of  Judge   Marshall  con- 
cerning validity  of  the  Wiscon- 
sin act,  62. 

physical  valuation  of,  59. 
taxation  of,  82. 

use  of  uniform  accounting  in  fixing 
rates  in,  60. 

Railroad   commission,     control    of 

public  utilities  vested  in,  58. 
no  delegation  of  legislation  to,  45. 
power  of,  to  contend  with  corpo- 
rations, 44. 
elected,  38. 

Railroads,  early  abuses  of,  in  Wis- 
consin, 34. 

physical  valuation  of,  59. 
Potter  law,  37. 

rates,  power  to  fix,  vested  in  com- 
mission, 45. 
regulation  of,  34. 
restrictive  legislation,  38. 
taxation  of,  82. 
Recall,  122. 

Referendum,    joint    resolution     for 
constitutional  amendment  con- 
cerning, 1 1 6,  309. 
Oregon  plan  of,  116. 
Refrigerator  lines,  regulation  of,  41. 
Roads,  legislation  concerning,  154. 


Roemer,  J.  H.,  on  work  of  the  rail- 
road commission,  59. 

Ross,  E.  A.,  on  precedent  in  law, 
237- 

Salaries,  proper,  for  experts,  184. 

Sanborn,  A.  W.,  on  corrupt  prac- 
tices, 102. 

Scandinavians,  influence  upon  Wis- 
consin legislation,  29. 

Second  choice,  93. 

Shippers,  small,  inability  of,  to  con- 
tend with  corporations,  46. 

Sidings,  regulation  of,  41. 

Sleeping  car  companies,  taxation  of, 

82. 
regulation  of,  41. 

Smith,  H.  L.,  on  difficulty  of  inter- 
pretation of  the  law,  211. 

Socialism,  299. 

State  insurance,  76. 

fund  to  provide   for  fire  loss  on 
state     and      county    property, 

79- 

State  superintendent  of  public  in- 
struction, primary  election  law 
does  not  apply  to,  92. 

Statutes,  revisor  of,  201. 

Stickney,  A.  B.,  on  early  railroad 
history  in  Wisconsin,  35. 

Stock  watering  in  Wisconsin,  74. 

Stocks  and  bonds,  regulation  of,  59, 

7*. 

Street  railways,  companies,  taxation 

of,  82. 

law  to  regulate,  59. 
placed  under  railway  commission, 

58. 
Supreme  court,  limitation  of  power 

of,  240. 
Switching,  regulation  of,  41. 


INDEX 


323 


Tax  commission,  80. 

Taxation  of  public  utilities,  82. 

Telegraph  companies,  placed  under 

railway  commission,  58. 
taxation  of,  82. 

Telephones,  physical  connection  of, 
58. 

Terminals,  regulation  of,  41. 

Transportation  and  despatch  com- 
panies, regulation  of,  41. 

Trusts,  i. 

Tuberculosis,  prevention  of,  171. 

Turner,  E.  J.,  on  relation  between 
university  and  state,  124,  139. 

Uniform  accounting,  use  of,  in  fixing 
rates,  60. 

United  States  senators,  direct  elec- 
tion of,  122. 

Water  power  law,  declared  uncon- 
stitutional, 273. 


Wisconsin  free  library  commission, 
legislative  reference  depart- 
ment, 197,  214. 

traveling  library  department,  152. 
Wisconsin  legislature,  set  Legisla- 
ture. 

Wisconsin  university,  124. 
college  of  agriculture,  125. 
continuing  appropriations,  125. 
criticisms  of,  136. 
extension   division   of,   127,    131, 

143- 

relation  between  state  and,  136. 
tax  for,  86. 

under  what  auspices  founded,  20. 
Workmen's       compensation,      156, 

164. 
decision   of   Wisconsin    court   in 

law  of,  256. 
English  form  of,  160. 
German  form  of,  160,  167. 


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UMIV.  Ut-  CALlr 

jLi8'«W 

rJUL  2  6  2000 

V^r^i     fg     **      C.UUU 

MAY  04  200R 

ORM  NO.  DD  6,  40m,  6'76 


UNIVERSITY  OF  CALIFORNIA,  BERKELEY 
BERKELEY,  CA  94720 


(JN5382slO)476-A-32 


university  ot  CaJifornia 
Berkeley 


U.  C.  BtKKtLbY  LIBHAMIti. 


241451 


